International Criminal Court [Lords]

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Mr. Maclennan: I have no quarrel with the scrutiny process in which the Opposition are engaged, nor do I suggest that close consideration of the Bill is not Parliament's duty. I am saying that the arguments that have been deployed in support of the amendments, to which I am confining my remarks, do not carry weight with me for the reasons that I have given. I hope that the Committee will see fit to reject them.

Mr. Browne: I hope that mine will be a relatively short contribution. The hon. and learned Member for Harborough has brought to my attention something that I had not seen in the statute. I shall not support his amendments, which will come as no surprise to him, but he uncovered something that requires an explanation.

As I understand it, clauses 2 and 3 were designed to meet our obligations under article 89. To understand those obligations one must look at other articles of the statute. I do not propose to do that because the hon. and learned Gentleman covered all of those. If I misrepresent him he can intervene to explain where I am wrong, but his argument appears to be that those obligations are qualified in that states parties are obliged to comply with requests for arrests and surrender only in accordance with the provisions of that part of the statute and

    ``the procedure under their national law''.

That is the important phrase. I think that he is arguing that there is nothing to stop us, as a sovereign state, creating a procedure under our national law that allows a degree of discretion.

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Having examined some of the contributions made in the other place I do not think that Baroness Scotland disagrees with that. She chooses her words carefully. She argues that it was not intended that the statute would be operated on a discretionary basis in relation to article 89. That is her interpretation of it. We do not wish to operate it on a discretionary basis. I categorically agree with that and to that extent I agree with the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

I cannot think of any circumstances in which we would want to operate this part of the statute on a discretionary basis, if warrants had been properly granted either for the pre-trial procedure or on conviction by the ICC. I sought to test the hon. and learned Member for Harborough by asking him to expand on that part of his argument. I respect his argument, but I do not think that advancing an ad hominem argument assists him in any way. It does matters not whose arrest is being sought, but the circumstances in which the arrest is sought, the reasons why and whether the warrant was properly granted.

We may have to envisage circumstances in which the arrest of a head of state may be sought. A former head of state has been arrested and brought before an international tribunal in Rwanda, and other senior politicians have been treated similarly. I would prefer it if we could envisage a set of circumstances where a properly granted warrant needed to be subject to some form of discretion in the United Kingdom, but I cannot think of any such circumstances at present. I have confidence in the future of the ICC and I think that it will develop a robust jurisdiction. I believe that warrants will be properly granted and there are many safeguards and procedure in the statute that require that. For those reasons I cannot support the amendment.

I said that there was something in the hon. and learned Gentleman's argument. In article 89, it appears that the court is given a level of discretion in relation to the transmission of warrants that I now do not understand. The first sentence of article 89.1 reads:

    ``The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State''.

If the ICC is truly to be an international court that operates against the sort of people that we want it to and if warrants are sought and granted properly, why does it require discretion about the transmission of that warrant to the country in whose jurisdiction the person whose arrest is sought lives?

6.4 pm

Sitting suspended for a Division in the House.


On resuming—

Mr. Browne: Before the suspension for the Division, I noted that article 89 gives the court an unqualified degree of discretion in relation to the transmission of a request for arrest and in relation to the transmission of a warrant. I do not fully understand why that is there, nor do I think that it is warranted. It has been suggested that one of the reasons why discretion is necessary is that the court may, under article 58.7, seek to proceed in the alternative method, by issuing a summons as opposed to a warrant. However, as the request for a summons would be instigated by the prosecutor, the necessary change would also have to be instigated by the prosecutor.

If a warrant existed, the prosecutor would presumably ask the court to discharge the warrant, as can be done under other statute provisions. I do not see the court granting a prosecutor both a warrant and a summons in relation to the same person. Therefore, the reason that the court needs the discretion cannot be that the court may choose to proceed with a summons. The court cannot under the statute choose to proceed by summons on its own motion. It can do so only on the motion of the prosecutor. So that argument does not stand up.

There may be circumstances in which a court chooses not to exercise a warrant or to transmit a warrant to be exercised to another state. As has been pointed out to me, the person sought may be in the territory of a non-state party. To try to have him arrested in those circumstances by an unco-operative non-state party would merely be to alert him to the fact that he was being sought and that a warrant was out for his arrest. In any event, it is unlikely that the court would be able to grant warrants without the people who were likely to be sought by the court having some indication that they were being sought for the purpose of arrest. It is to be hoped that those who are refugees from the court will only be able to seek any sort of haven in countries that are non-state parties. So that argument is not strong.

Those are circumstances in which the court might decide to exercise some discretion in relation to a particular warrant. However, what concerns me is that the statute appears to give the court an unqualified discretion on transmission. I thank the hon. and learned Member for Harborough for pointing that out to me. I ask the Minister when he replies to address the same question I posed to the hon. and learned Gentleman. In what circumstances does he envisage a warrant for arrest properly being granted for a person suspected of such crimes but a court exercising its discretion not to transmit that warrant to a state party in whose territory the person sought might be?

How can we be assured that, if there are circumstances in which discretion would be appropriate and legitimate, the court would be confined to operating that discretion only in such circumstances? Might we not find ourselves in future faced with a court that has an unqualified discretion in relation to the transmission of warrants and that is, because of a procedural flaw, subject to just the sort of political pressures from which we all hope an independent court is immune?

The Solicitor-General (Mr. Ross Cranston): I shall invite the Committee to resist the amendments that attempt to introduce a discretionary element into the transmission of the ICC request for arrest and surrender to the appropriate judicial officer.

The first element in the argument is the point that was raised most succinctly by the right hon. Member for Caithness, Sutherland and Easter Ross, who pointed out our international obligations under article 89 of the statute. The key words in article 89 are in the last sentence of paragraph 1:

    ``States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.''

The language is mandatory: states are obliged to act. As the hon. and learned Member for Harborough pointed out, there is discretionary language in other parts of the statute. There is also important mandatory language elsewhere in the statute. My hon. Friend the Minister of State referred to article 17; the mandatory language there says that the court shall not exercise jurisdiction if a national court is willing and able to act. I referred to that important protection in the previous debate. That is mandatory, as opposed to discretionary, language.

My hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) raised several issues about other parts of article 89. He pointed out that the opening sentence of paragraph 1 is:

    ``The Court may transmit a request for the arrest and surrender''.

He was puzzled and asked why there is discretionary language in respect of the ICC transmitting a request for arrest and surrender. He gave several possible answers in terms of the alternative procedure by way of summons under article 58. He also gave the example of the unco-operative non-state party, and one can envisage other examples.

My hon. Friend asked whether the court might not abuse such discretion by not proceeding if it were subjected to political pressure. The court will act in accordance with law that will build up over time, as is always the case. The hon. and learned Member for Harborough raised the issue, in the domestic context, of the discretion of the prosecution to proceed. Yes, there is a certain element of discretion, but in exercising that quasi-judicial function, the prosecution—the Director of Public Prosecutions, the Attorney-General, or myself as Solicitor-General exercising our statutory functions to give consent for prosecutions—acts in accordance with law. The discretion is not completely open but is bounded by law.

The reply to the argument of my hon. Friend the Member for Kilmarnock and Loudoun is that, even if the court has such discretion, an obligation is triggered once the court acts. That is our concern about the Opposition amendments: they would introduce discretion at that point. We do not find that discretion to be in accordance with our international obligations under article 89 of the Rome statute, the language of which is mandatory. My hon. Friend perceptively pointed out that the last sentence of article 89.1 includes the phrase

    ``in accordance with...the procedure under their national law''.

Those are descriptive words. They simply say that, just as prosecutors must act in accordance with law, so must the state do certain things in accordance with its national law. Those words do not give state parties power to introduce other hurdles to the process.

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All documents like the Rome statute are drafted against a certain background, and the background in this case was the method used to set up the international tribunals for former Yugoslavia and for Rwanda. Those tribunals were implemented in our national law in a way that did not provide for discretion, which leads me to question the Opposition Members who have tabled amendments. Schedule 4(1) of the statutory instrument—SI 716 of 1996—that introduced the tribunal for former Yugoslavia is the equivalent of clause 2 and states:

    ``Where the Secretary of State receives from the International Tribunal a warrant of arrest issued by the International Tribunal . . . the Secretary of State shall transmit the warrant to an appropriate judicial officer''.

Schedule 5(1)(b) of that order—the equivalent of clause 3—includes mandatory language about provisional warrants of arrest. On receiving a request,

    ``the Secretary of State shall transmit the request to a constable and direct the constable to apply for a warrant for the arrest of that person.''

That is the experience of the use of mandatory language not providing for a discretion in international matters. That approach, mandated by the treaty, is the one that we are introducing. I commend the previous Government for introducing the 1996 order, some of the provisions of which we are mirroring in clauses 2 and 3. Article 89 obliges us to act, and we are acting in accordance with the precedent of the tribunals for the former Yugoslavia and for Rwanda.

Various issues raised in this interesting debate have returned us to the Opposition's fundamental concern. They fear that the ICC will act in a manner that is abusive of its powers. We think that the protections in statute and in the Bill are such that there will be no abuse. My hon. Friend the Member for Kilmarnock and Loudoun referred to article 17, which makes it clear that the court shall not have jurisdiction if we are willing and able to deal with matters. That is why part 5 of the Bill covers offences under domestic law. Our courts can deal with relevant cases and if we prosecute, or decide not to, in accordance with law, the ICC will not be able to trump our decisions. If we decide not to prosecute, our decision will not be trumped.

The Opposition's amendments illustrate another problem with their approach. We would not like to think that other states could introduce discretions because, as my hon. Friend the Member for Kilmarnock and Loudoun mentioned, it is easy to imagine the equivalent of our Secretary of State in Serbia exercising discretion to prevent proceedings against a future Milosevic in accordance with ICC law. The discretion exercised by a state official might be such that a future Milosevic might escape justice. Such discretion would be contrary to our obligations under the treaty. The policy arguments are in favour of not having that discretion.

We will, however, be in a position to investigate cases within our jurisdiction. Sufficient protections exist in the statute and the Bill—for example, in clause 5(4),—to allow us to protect our national interests. We will act in accordance with law and deal with offenders under our own provisions; the ICC will not be in a position to trump us. The arguments are clear: we will have an international obligation, and we are simply doing what the previous Government did in relation to the two previous international tribunals. There are good policy reasons for not introducing a discretion that would allow the Executive to impede the procedures set out in the Rome statute.

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