International Criminal Court Bill [Lords]

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The Chairman: With this it will be convenient to take amendment No. 52, in page 14, line 17, leave out subsection (4).

Mr. Maclennan: I want to raise again matters that were raised in another place by my noble Friend Lord Avebury, who was supported by Lord Lester of Herne Hill. The debate will allow the Government to reconsider an important issue.

As it stands, the clause affords the Minister the discretion to refuse delivery in certain cases. That approach is too cautious. It allows a discretion to the Minister that it would be wiser not to allow. The clause leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by or from the ICC. Clause 23(4) leaves it to the Minister to decide to whom immunity should attach in relation to non-state and state parties alike. Once again, that might leave the Minister open to considerable political pressure and prevent the United Kingdom from co-operating effectively with the ICC.

In another place, the Attorney-General made a distinction between discretion in relation to state parties, to which subsection (1) refers, and non-state parties, to which subsection (2) refers. The justification for that distinction is hard to see. My noble Friend Lord Avebury pointed out that it was wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events as a result of there being a dispute. The Attorney-General reaffirmed that there would always be consultation between the Secretary of State and the ICC and between the Secretary of State and a non-state party to ascertain, first, that no waiver had been issued and, secondly, that the person had the immunity that he claimed to have had.

The Secretary of State would want to exercise such discretion if he disagreed with the court about whether the accused had made out a case that he was a member of a non-state party and had the immunity that he claimed to have had. All NGOs that have examined that point have told the Government that it should be a matter for the ICC in accordance with the statute of Rome. The Attorney-General said that he thought that, in certain exceptional cases, subsection (4) could be necessary and that he was standing firm on the non-state parties. While there may be circumstances in which discretion may seem desirable on the part of the Executive, it is unnecessary and undesirable that the Secretary of State should be subject to political pressure if he were to decide in which particular exceptional circumstances subsection (4) applies.

My amendment is based on articles 66 and 120 of the New Zealand statute, which provide that when the Minister is concerned about the clash of the international obligations of New Zealand including immunities, he can consult the ICC to ask whether it wishes to proceed with the request. Such a consultation procedure would remove the Government's veto, but would allow the Secretary of State to raise his concerns about either state parties or non-state parties and to ask whether the court considers that an effective waiver has been issued and whether it properly applies to the individual concerned.

Let us suppose that there is a dispute about the effective Government of a state and the individual argues that the party that has issued the waiver and accepted the jurisdiction of the court does not have the necessary authority to do so. It seems highly unlikely that the ICC would ask us to set aside our international obligations in relation to state or diplomatic immunities, except when the state concerned has accepted its ability to do so. I understand that to be the purpose of article 98 of the Rome statute, and we should trust the ICC, when it is established, in respect of that statute.

If there were a conflict between the judgment of the Government and that of the ICC in such a matter, this country would be under an obligation to abide by the statute and to give the ICC priority. The amendment would not simply delete subsection (4), but would provide for consultation to eliminate such a conflict. In most circumstances, that would be the natural consequence of such a referral.

Mr. Blunt: It is a pleasure to follow the right hon. Gentleman. I am slightly at a loss about the effect of his amendment and I am not sure that it entirely distinguishes between state and non-state parties. My amendment would delete subsection (4), the reason for which I hope is crystal clear. Will the Solicitor-General, if he is replying to this part of the debate, explain the consequences of amendment No. 52? A distinction will have to be made between state and non-state parties to the agreement. I am happy to come back on Report and table another amendment making that distinction, which would leave subsection (4) as it is but for the removal of ``(1) or'' in line 19. The subsection would then refer to non-state parties, as subsection (1) refers to state parties.

11.15 am

The importance of the issue cannot be understated, as it goes to the heart of the statute itself. Article 27 is absolutely explicit. It states:

    ``This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence . . . Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.''

The article could not be more explicit. The whole purpose of the ICC is to bring to justice the leaders of countries who order the crimes on which the court will rule.

Will the Solicitor-General explain part of article 98, which to a small extent seems to qualify the absolute position taken in article 27? Later, I hope that we may have a discussion about universal jurisdiction and whether it is right for the United Kingdom, if it is a party to the words of article 27 and in the preamble to the statute, to try not only our own nationals when they fall within this jurisdiction but nationals of other countries for the heinous crimes laid out in articles 5 to 8 of the statute. We will have that discussion later, and ask whether the measures should apply to non-state parties as well as state parties, who are then within the scope of British law and within the United Kingdom.

Although article 27 is explicit, article 98.1 adds the point that countries that have not ratified the treaty and are therefore non-state parties will clearly have different international obligations with state parties. As I understand it, article 98.1 simply states that a non-state party to the agreement or a third state can properly expect the immunity of its diplomats and Heads of Government in dealing with a state party to be respected, as they are not a party to the ICC. Article 98.1 seems to give that protection to the diplomats and representatives of non-state parties. The Government clearly have a proper case to make in that regard, that the ICC and the statute and the international law that has been created to establish it, cannot be seen to override previous international law, not least that relating to immunity.

It is clear, however, that states that ratify the statute accept article 27 and, therefore, accept that immunity will not apply to their own people. How, then, can the Solicitor-General possibly defend subsection (4)? The subsection explicitly gives discretion to the Government by stating:

    ``The Secretary of State may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings . . . under this Part which, but for subsection (1) . . . would be prevented by state or diplomatic immunity''.

Subsection 1 states:

    ``Any state or diplomatic immunity attached to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this Part in relation to that person.''

That is clear. In subsection (4), the Government are giving themselves the discretion to let off a diplomat, Head of Government or any representative of a party to the statute when faced by an ICC warrant for such a person's arrest. The Government cannot properly defend that position. In previous debates, the Government have resisted giving themselves discretion. They have resisted changing the word ``shall'' to ``may'', and they even resisted the proposal that Parliament should hold an inquiry into proceedings if there is a dispute with the ICC. The Government have resisted a public interest test about proceedings, and now they say that they will give themselves the discretion to let off diplomatic representatives or Heads of Government of countries that are party to the agreement.

Later, we shall discuss universal jurisdiction. I contend that subsection (4) can be dispensed with if the ICC is to be supported in the terms that the Government have put forward in signing up to the statute. If we in the United Kingdom are on the receiving end of a warrant from the ICC to surrender somebody who has been accused of crimes, why should the United Kingdom intervene? There is a case to be made for that, and I would like the Government to make that case when they say that my amendment, as drafted, would not be correct.

We must examine the Government's position, as set out in the explanatory notes, when we consider the matter, and how the Government have moved under pressure from the NGOs to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. In the initial consultation about the ICC there was no mention of diplomatic immunity. When that was pointed out to the then Minister, the hon. Member for Neath (Mr. Hain), he was shocked that the Bill would drive a coach and horses through the ICC because it would not deal with the matter of diplomatic immunity. Following that consultation, diplomatic immunity is in the Bill.

To be fair to the Government, the explanatory notes to clause 23 present their understanding of the case, which states:

    ``Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person.''

The explanatory notes continue to say that article 98.1 draws the distinction between state parties and non-state parties, and make it clear that the surrender of a person for whom a warrant has been issued who is a representative of a non-state party can occur only once the permission of their state party has been obtained, if that person is a diplomat or has immunity. That suggests that subsection (4) is not consistent with the statute, although a case may be made that it would be consistent with article 98.1 if the reference to subsection (1) were struck from its provisions. However, there is a case for striking the subsection altogether. The Government—having resisted any discretion thus far—should not have discretion if they are in receipt of a warrant from the ICC, they should get on with it and surrender the person for the crimes that the ICC had identified.

What do the provisions of article 98.2 mean? I sat down with and without a wet towel and read it several times to try to understand what it means and whether it is different from article 98.1, but I do not understand. I should be grateful if the Solicitor-General would explain, in simple language that a simple ex-soldier like me can understand, what article 98.2 is intended to achieve.

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