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Lord Whitty: My Lords, the allocations of the new funding will be made by the local authority which will
have its usual responsibilities in relation to the provision of funds. The point of the local strategic partnerships and the other relatively small-scale funds to which I have referred is to ensure that there is a degree of continuity and cumulative effect as between the programmes that already exist. Some of those programmes, for example those concerned with public and social housing and housing generally, are funded through local authorities; others remain the responsibility of the health service or the police. The aim is to co-ordinate and bring them together. It does not cut across the primary responsibility on public authorities to deliver value for money and effective outcomes in relation to mainstream budgets. However, it gives authorities targets for the expenditure of that money to ensure that it is spread more equitably and the identified neighbourhoods benefit more than the rest of the country in the deployment of those funds. However, management of the mainstream funds remains where it is.
The Lord Bishop of St Albans: My Lords, I am grateful for the Statement. I note with satisfaction, and a degree of wry amusement, that when I was the incumbent of a parish I was, without knowing it, a community pathfinder. I think of the battered wife with black eyes and bleeding mouth who sought refuge and counsel from me and my wife. I also think of the number of times that the police phoned me as the vicar of a parish to ask whether I would help someone they held who was mentally disturbed. I also have in mind the countless homeless people who knocked on my door and asked for advice and help. I did what any parish priest would do anywhere.
First, can one guarantee that if local managers are to be appointed they will, like the clergy of this country, live in the places where they work; or will they, as I suspect, go home whenever appropriate? Secondly, will there be discrimination in the disbursement of funds against those religious and faith communities which stay in urban and rural areas of high deprivation, or will their central role in the provision of pastoral, physical and spiritual care be recognised in both word and action?
Lord Whitty: My Lords, it is important that faith communities in these areas are brought into the partnerships and play a major role for the very reason indicated by the right reverend Prelate. In many cases the parish priest, minister, temple, synagogue, or whatever, provides a major focus to improve the lot of families subject to the worst effects of living in these deprived neighbourhoods. An enormous amount of experience needs to be brought on board. It is certainly the case that the local strategic partnerships and the other bodies to which we refer should bring in the faith communities.
As to the appointment of staff, obviously it is sensible and desirable that whoever is appointed to a management role is familiar with the area and has considerable knowledge of the community with which he or she has to deal. Whether as a job condition we
can express that one actually has to live in the area being targeted is probably taking the matter further than I would be prepared to take it. But the objective behind that issue is clear.
Lord Hylton: My Lords, the question of accountability for desirable work and expenditure has been raised. First, it would be much clearer if accountability came through regional authorities in England, as already happens in Wales and Scotland.
Secondly, the two Opposition Front Benches raised some points that they were critical of or unsure about. I believe that the key to them may be in the concept of community development. I point out that community development is completely different from consultation on official plans, desirable as that may be in its own right. Community development is concerned with the personal development of local leadership and the working out of local priorities for what needs to be done first. Without that structure one finds that potential local leaders move somewhere else as soon as they reach a certain degree of prosperity.
I hope that the Government will have a new look at community development as a subject. The issue has had a rather chequered history because it tends to threaten some of the established structures, whether local or central.
Lord Whitty: My Lords, on the first point relating to regional level activity, it is important that the regional structure is fully involved. At present it is administrative. Although I would advocate moving towards a certain degree of regional government within England, we are operating on the structure as it is and it is important that the government offices are fully involved in this process. The government offices will have neighbourhood renewal teams which will be the link with the local strategic partnerships bringing together activity at the regional level. There are roles for other regional bodies such as the regional development agencies, particularly with regard to physical regeneration and employment creation. Therefore, there is a regional dimension to this issue. But the most important dimension must be at the local level.
I agree with the noble Lord's point about services and reallocation of funds not being provided solely on a top-down basis. This is about empowerment. It is about enabling communities to stand on their own two feet to bring forward local leadership and to develop communities through the process which he describes. Therefore, those communities will have some control over their own lives. They have so often suffered from the effects of decisions taken miles away without any regard for their own interests. Part of the process is that government and local government become more conscious of their needs and gear their activities towards them. But an important dimension is generating self-help.
Baroness Fookes: My Lords, perhaps I may commend to the Minister a scheme which took place some years ago in one of the most deprived wards in
my then constituency of Plymouth. A committee of local people living on a small estate, together with various local professionals, local authorities and so on, worked out schemes really from the bottom up. They were not just consulted; they took initiatives and were guided and helped by the relevant professionals. That seems to me the answer because for too long it has been the other way around. In these very difficult areas it rarely works. It must come from the bottom up. That little estate was transformed from the time when I attended the committee's first meeting and was told that on no account was I to bring a car because it would not be in one piece by the time I left at the end of the evening.
Lord Whitty: My Lords, I agree that there are a number of heartening examples across the country. I am sure that the one in Plymouth is apposite. Many others are referred to in the document. We wish to generalise that without taking a uniform approach. Certainly we can learn from and follow the example of communities which have managed to develop schemes, persuading both public authorities and the private sector to back them. This produces a benign cycle of increasing confidence and therefore increased ability to deal with problems and to improve the quality of life. The more locally-generated proposals that we can come up with, the better in order for us to deliver the intentions of this programme.
International Criminal Court Bill [H.L.]
Second Reading debate resumed.
5.6 p.m.
Lord Lloyd of Berwick: My Lords, like other noble Lords who have spoken in the debate today, I, too, strongly support the aims of the Bill. I can state my reasons briefly, and, I fear, superficially compared to the learned speeches we have heard from the three Front Benches.
I was one of those who took part in the Pinochet case when the matter came before this House. The Bill is not in any way a response to the Pinochet proceedings. It is a response, perhaps a belated response some might think, to the Rome Statute agreed as long ago as July 1998, which was three months before Senator Pinochet was arrested.
It is perhaps interesting and instructive to look back at the Pinochet case now and to speculate as to what would have been the result if the International Criminal Court had then been in existence. Indeed my noble friend Lord Lester of Herne Hill has already indulged in a little speculation in that respect.
One of the arguments advanced on behalf of the Government of Spain, and advanced very forcefully as I remember, was that there must be a means of bringing a person such as Senator Pinochet to justice. My answer at the time was a simple and perhaps even rather ingenuous one. My view was that he should be returned to Chile and tried there. That may yet happen
if Senator Pinochet is found fit to stand trial. However, that course did not appeal to the majority of my brethren so I say no more about it.If sending Senator Pinochet back to Chile seemed to me to be the obvious way to deal with the case, it is certainly not the only way in which such a person can be brought to justice. I pointed out that he could have been tried in the domestic courts of other countries, claiming jurisdiction on whatever grounds in the case, provided the Government of Chile did not assert immunity on Senator Pinochet's behalf as a former head of state. In the event the Government of Chile vigorously asserted a state immunity.
Another alternative was that he should be tried in a specially constituted international criminal court, such as happened in the case of Yugoslavia in 1993 and Rwanda in 1994. Lastly, I said that Senator Pinochet could have been tried in the International Criminal Court if it had then existed because Article 27 of the Rome statute, which is the critical provision, in simple terms overrides a claim for sovereign immunity in cases of states which are party to the statute.
I am glad to see that Clause 27 of the Bill reproduces the effect of Article 23 of the statute. That is one of the most important, if not the most important, provisions of the Bill. If the court had been in existence in 1998 and Chile had been a state party to the statute it would have been idle for Spain to seek the extradition of Senator Pinochet, with all the trouble that then ensued. Senator Pinochet could, and no doubt would, have been arrested here under the relatively simple provisions of Part II of the Bill. The Bill has already been described as complex, as must be any Bill with 83 clauses and 10 schedules, but I am not sure that Part II of the Bill is much more complex than the provisions of, for example, the Extradition Act 1989 on which it is to some extent based.
If Senator Pinochet had been arrested under the Rome statute, it would have meant that he could then have been tried for all his alleged international crimes in a truly international court instead of the domestic courts of one or other of a number of different countries, all asserting international jurisdiction and all competing with each other to exercise that jurisdiction. That would surely have been a great advantage. It would also have meant that it would have been unnecessary--this is perhaps a more personal matter--to stretch the principles of customary international law in order to secure his extradition to Spain. However, I recognise that that is a minority view which perhaps I should not even have expressed. What I will say is that the Pinochet case proves the need for a court such as the International Criminal Court. It also proves the need for this legislation. To my mind it is an important Bill and I give it my warmest welcome.
5.13 p.m.
Baroness Kennedy of The Shaws: My Lords, the House enjoys the presence of many human rights warriors. I join them in warmly welcoming the Bill. Like the noble and learned Lord, Lord Lloyd, I see the
Bill as one of the important actions of the Government. It should not be forgotten how hostile previous administrations were to such a court. I congratulate the Prime Minister and the Secretary of State on their role in the negotiations for the court and on securing a leading position for Britain in its creation.The idea of a world criminal court is not new. It has had a long gestation period. It received its first concrete shape in 1937 when a draft statute for a court to try international terrorists was produced by the League of Nations. It came up again in the wake of the Second World War. After the Nuremberg and Tokyo tribunals, the UN made a passing reference in the 1948 Genocide Convention to an international penal tribunal and draft statutes were produced over the next few years by the International Law Commission. But the project soon went into the deep freeze of the Cold War and was not brought out again until Gorbachev suggested it as a measure against international terrorism. The General Assembly asked the International Law Commission to resume its work, hurrying it along after large parts of a shocked world expressed enthusiasm for its creation when war crimes in the former Yugoslavia were exposed. The other important engine of change was that many governments were under pressure from NGOs active in the human rights arena to support an International Criminal Court. We should not miss the opportunity of saluting the many dedicated organisations--Amnesty International, the Helsinki Human Rights Watch, and others--which have campaigned for the court for many years.
What kind of court was a matter of wide disagreement and generated a very fractious debate internationally. While it is a source of celebration that 139 nations have now adopted the statute to create the court, we should also remember that 21 nations abstained. The seven which opposed included China, Israel, India and the United States, representing a massive concentration of people and power. There is, of course, a group of countries which does not want a court at all. I suppose that we could call them the usual suspects. The list will not surprise anyone: Iraq, Iran, Libya and Indonesia.
The United States initially wanted a court, but one that would never work against the interests of the United States. The model which the United States preferred was one where the court was controlled by the Security Council, where the US could use its superpower veto against any embarrassing prosecutions. Not surprisingly, China took the same view. That model for a court did not meet the aspirations of Britain, Canada, Germany or any of the other "like minded" group of 42 nations which believe in international human rights. However, trying to find compromises to keep America on side has greatly weakened the statute that was finally agreed. Concessions were constantly made in the negotiations to woo the United States and that has created flaws which are now embedded in the legislation that we are now endorsing. The legislation goes so far as to require
a state's consent before one of its nationals can be prosecuted, a clause introduced in a desperate attempt to placate Senator Helms, who demanded 100 per cent protection for American GIs. It does not take much vision to see the practical problem that that creates. Imagine Cambodia ruled by Pol Pot surrendering him or one of his henchmen for trial!The court also has no "universal" jurisdiction--again at the objection of the Americans. The Rome statute gives the court jurisdiction either by remit from the Security Council--the Security Council gets to decide--or by the consent of the state of which the defendant is a national or in which the crime was committed. The "state consent" provisions within the treaty mean that no one occupying a position of current political or military power in any state is likely to be put on trial unless he invades another state or commits war crimes on its territory. Any retired war criminal like Pinochet in Chile who retains a power base in his state of nationality will remain safe, despite the belief of the noble and learned Lord, Lord Lloyd, that he could have been brought to trial.
The class of criminal most likely to be arraigned at The Hague is persons who commit barbaric crimes in a cause which has utterly failed, in a country which decides to surrender them because it lacks the facilities to try them itself. Otherwise the ICC will become a kind of permanent ad hoc tribunal dependent on references from the Security Council to investigate countries like Rwanda and the former Yugoslavia where none of the combatants has superpower support. It will take strong advocacy by countries like our own to ensure that the court has teeth. As the noble Baroness said at the outset of this debate, the new court will not have any retrospective powers and will be able to deal only with future abuses, so there is no justice here for many of those monstrous criminals of the 20th century who are still alive and who still enjoy their freedom.
The powers of the prosecutor are also greatly shackled by the court. Perhaps that was because President Clinton had the unhappy example close to home of the special prosecutor in the form of Kenneth Starr. Whatever the reason, it is certain that the powers of the prosecutor fall short of what I would have hoped for.
However, I do not want to minimise the importance of this legislation. It is a truly great achievement. To take words from the preamble to the Rome statute, this is a huge step towards global justice:
- "Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage and concerned that this delicate mosaic may be shattered at any time".
Finally, the viability of the International Criminal Court ultimately will depend more on the calibre and experience of its judges and prosecutors than on the
fine print of statute. I truly urge our colleagues, the Secretary of State and others to ensure that the judges in this court will be our finest.5.21 p.m.
Lord Moynihan: My Lords, as one of the speakers that the noble Lord, Lord Lester, categorised as a "human being" among so many fine legal minds, it is increasingly daunting to participate in the Second Reading of this Bill. Nevertheless, I am grateful for the opportunity to make some general observations. I echo much of what was said by my noble friend Lord Howell in his far from tepid and excellent speech. I, too, have no hesitation in strongly supporting the concept of an international criminal court.
We all desire a more just, a more peaceful and a more secure world. No one who believes in the protection of human rights, in justice and in the rule of law could doubt the worth of the principles underpinning the International Criminal Court. No one could doubt the importance of bringing to justice the perpetrators of many of the worst crimes known to man. Yet, despite millions of victims of genocide, crimes against humanity and war crimes, as citizens of a world society, and as the Minister rightly pointed out, we have frequently failed to do so.
All too often in the past, these criminals have gone unpunished. Most clearly believed that that would be the case and they have been right. The 20th century saw a tyrants' gallery overflowing with unpunished dictators. As a result, the world is awash with men, women and children denied justice, while true reconciliation between conflicting groups or states has often proved elusive.
The establishment of the first permanent international court dealing with individual accountability for crimes against international law is a step on a hard road towards ensuring that the most egregious evils of genocide, crimes against humanity and war crimes which have stained the 20th century with blood and tears, do not likewise stain the 21st century.
In 1998, the Rome Statute established the ICC as a permanent international body to be in harmony with national judicial systems, not in competition with them. That point has been reinforced from all sides of this House. There was a strong British contribution to the complex process of instituting the statute of which we can be proud.
Before I make my substantive points on the Bill, I should like to make some general observations on the efficacy of the court which needs to be explored in further detail. While the need for action is clear, we must ensure that what we are creating is a truly legitimate vehicle for international justice. Such a body must be a powerful deterrent with a broad reach, based on global fundamental principles of justice, able to respond quickly to events and, critically, it must be above damaging accusations of selective justice, under which the strong and powerful are favoured while the weak and defeated are prosecuted. Anything less risks harm to the credibility of the ICC and to international justice.
Lawyers, politicians and human rights groups have all lined up to give their opinions on the ICC and controversial issues, from whichever end of the political spectrum they are viewed, have abounded. For some, it is too much world government; for others, it is too little. The seven-year wait before some countries will accept the jurisdiction over war crimes, the potentially indefinite wait in relation to the definition of crimes of aggression and the failure to tackle terrorist offences have drawn criticisms on the one hand, while issues of national sovereignty and jurisdictional borders have been equally hotly debated. The degree to which concessions were required to reach consensus on the statute, in particular in the efforts to persuade the United States of America to sign, has caused some to wonder whether the result has inevitably compromised an effective, independent and fair body. I hope that that is not the case.
Yet I do have concerns about the court's efficacy. Except when the UN Security Council refers situations to the court, the ICC will have jurisdiction over crimes only in countries which have ratified the court's statute, or by their nationals. The preconditions for the court's jurisdiction are either territorial or nationality-based, although only one is required. But while state parties are obliged to co-operate with the ICC, non-state parties must give their consent.
Much of the debate in setting up the statute centred around the question of where the international legal boundaries should lie between sovereign states and universal human rights. There is, of course, a delicate balance, but to what extent will this limit the effectiveness of the court, since those countries with the worst human rights records are precisely those which are least likely to become parties to the treaty? Iraq and China come to mind. Furthermore, the governments of non-party states whose members may be the subject of investigation are unlikely to co-operate. If they do not consent, what can be done? Will it be impossible to prosecute crimes across jurisdictional borders if states do not consent, and where do those borders lie in reality? To what extent is the back door left wide open for those who commit crimes in countries that have refused to accept the jurisdiction of the court and does this potentially de-claw the court before it has even begun to operate? There is, of course, the mechanism by which the UN Security Council can decide that a situation presents a threat to international peace and security and refer that situation to the court under Chapter VII of the UN Charter. The court can then take action regardless of whether the state concerned is a party to the court or has given its consent.
Yet, speaking from the point of view of a layman, this creates a new set of problems. The Security Council would have to carry the resolution and the recent record of the disagreement and paralysis which has stricken the Security Council on issues from Iraq to Kosovo does not always augur well for such unanimity. The Foreign Secretary has predicted that the Security Council would have referred Saddam Hussein to the ICC, had it been in existence. But what
about the example of China, which is a non-state party, but which is of course a permanent member of the Security Council? What action would the court have been able to take in response to the individuals responsible for the crime of Tiananmen Square? What will the court do when faced with such acts by future world leaders of non-state parties?The absence of American support for the statute was initially a cause of grave concern. Here I echo many of the comments made by the noble Baroness, Lady Kennedy. Without the blessing of the US, the court would always struggle to claim the global mandate necessary for its credibility. However, at the eleventh hour, in a milestone for the ICC, President Clinton signed the statute. Yet US ratification is far from assured. President Clinton made it clear that in signing, the US was not abandoning its concerns about what he called "significant flaws" in the treaty, in particular in terms of the court's jurisdiction over the personnel of non-party states. There was a further sting in the tail. President Clinton said that he would not, and did not, recommend his successor to submit the treaty to the Senate for advice and consent until the fundamental concerns of the US were satisfied. In effect, the US signature ensures a continued place at the negotiating table to influence the court's establishment, but no promises on ratification.
Only last month, Donald Rumsfeld, President-elect Bush's nominee for Defense Secretary, warned that,
- "American leadership in the world could be the first casualty of the Court",
In a sharply-divided Congress, where Republicans have vowed that they will never ratify the treaty and the chairman of the Senate Foreign Relations Committee, Senator Jesse Helms, has promised to work to erase "swiftly and surely" President Clinton's signature, the ICC and the international system of justice is likely to become a pawn in a vicious game of partisan politics in which clashes over the court's impact on US national interests and the President's constitutional powers to conduct foreign policy will raise the stakes sky-high. I ask the Minister, to what extent do the Government consider that the American Servicemembers' Protection Bill, which has attracted considerable support and which would prohibit American co-operation with the ICC while the US is not a party and would cut off US military aid to non-NATO allies who ratify the ICC, amounts to undermining the treaty?
Naturally, there are gaps and loopholes which will need to be addressed and appropriate safeguards put in place during the Committee and Report stages of the Bill--the issue of diplomatic immunity for representatives of non-state parties; the question of who is to carry out the enforcement of ICC orders; the question of a statute of limitations in the case of ageing war criminals; and the issue of the application of universal jurisdiction and its implications.
I end on a slightly different note, which I hope is not a controversial one. Criminal prosecution is but one thread in the web we can weave around the perpetrators of these crimes. War crimes tribunals are not the only means of facilitating peace. In certain situations, plea bargains, amnesties and pardons can be important too. Criminal justice should never be an instrument for revenge. Contradictory though it may seem, peace and justice are not always bedfellows, but without peace there cannot be justice. Establishing the truth of what happened in order that nations emerging from a post-conflict situation are able to confront and exorcise the ghosts of their past, has as much of a role to play as criminal prosecutions. In this respect, the example of the South African Truth and Reconciliation Commission in the aftermath of apartheid has much to teach us.
In conclusion, in formulating our strategy for a more peaceful world, a one-size-fits-all prosecutorial strategy or, for that matter, a uniform preference for a non-juridical alternative, would be too narrow an approach. It is true that circumstances differ and circumstances matter. I am glad to say that the atrocities with which the ICC will be concerned are still unusual. For precisely that reason, their resolution should be too. I hope that the ICC will be a further string in our bow for achieving such resolution. I look forward to the next stages of the Bill.
5.33 p.m.
Lord Shore of Stepney: My Lords, this very important measure raises quite fundamental questions, including, I am glad to say, the wider picture outlined by the noble Lord, Lord Moynihan, of the contribution that different approaches can make towards an objective which I am sure the whole House, without dissent, shares; that is, how best to deal with the beastliness of the misuse of power and tyranny which some countries inflict on their own people.
We have in the United Nations Charter many defences against the tyranny of aggression. Indeed, the crime of aggression of one country against another is the one great reality to come out of the post-war world and the United Nations Charter. That is why throughout my political life I, and I am sure others, have always felt that when the call came--whether in South Korea or, more recently, in Kuwait and Iraq--the international community had the obligation to act. While the acts may not have been perfect, they were part of the civilising effect of the arrangements made in our post-war era.
The great gap in our post-war era has not been so much the means and organisation to deal with cross-border aggression but what to do with the appalling tyrannies that exist within the territories of sovereign states. One is straightaway up against enormous practical difficulties--the difficulty of power, for example. I am sure that I am not the only Member of the House who has had to do quite a lot of rethinking about our approach to such issues in the light of the Kosovo war and the appalling behaviour of the Serbs in relation to the Kosovar minority. Let no one have any doubt. We crossed an enormous frontier of
international action and law when we waged war on Serbia for mistreatment of its own people. No frontier was crossed and no crime was committed against neighbour states--except indirectly, perhaps, when they were burdened with the vast outflow of refugees and so on--but the enormous step forward was taken of criminalising the actions, which we all agreed were criminal, of a tyrant against his own people.I have since thought a lot about the issue, as, no doubt, have others. When I try to apply that approach to other situations in the world in which we live--either those which have occurred in the past or those which we are facing today--I find that it offers very little opportunity of redress. Can anyone imagine that we would bomb China in order to rescue the people of Tibet? Does anyone think it would be right to bomb Moscow because of Russian behaviour in Chechnya? No. It is not possible. It is possible to contemplate measures of that kind only against insignificant military powers. I do not recommend it.
That is why I am interested, not, as it were, in abandoning the attempt to deal with tyrants but in looking at the whole range of possibilities available to us if we have the intelligence and the will to apply them. That is why I am in favour of this Bill. It is one of the many measures available to us, if you like, short of waging war. Economic sanctions, diplomatic approaches and diplomatic reprisals of one kind or another are there. Looking back on Kosovo, yes, if need be, open our frontiers, however temporarily or for however long, to give some shelter against the evil oppression of tyrannical rulers. Looking back on it, that would have been a better way of trying to deal with that problem.
The intensification of measures against those who behave wickedly against their own people is something with which we should be seriously concerned. I know that noble Lords on all sides of the House share that concern and the worry about how effective the measures will be. I approve without reservation the general purpose behind the Bill. A measure that can bring to justice and punish evil men who misuse power is to be applauded.
Secondly, it must not be forgotten that if virtually all the nations concerned make it clear that they will do their utmost through international law to bring people of that kind to justice, however many years after they may have committed their crimes, it will have a deterrent effect. Those in power who are about to commit acts that are more wicked than usual will think harder about doing so. They will give thought to the fact that they may later want to retire to another country; they will wonder whether they will be arrested. Therefore, this matter should not be judged simply on its own, but as part of what I hope is a growing arsenal of effective measures which--short of waging war on countries that misbehave inside their own frontiers-- can be effectively mobilised to the benefit of the many millions who suffer at the hands of tyrants.
That said, I must probe a little the provisions of the Bill. To some extent I follow the sensible approach of the noble Lord, Lord Howell, speaking from the
Opposition Front Bench. I say to his critics on the Liberal Democrat Benches that no Opposition can fail to scrutinise legislation in a serious way, as the noble Lord did, if it is to do its duty to Parliament. We all have a duty to examine carefully the measures placed before us.In that context, I should like to raise a question and then home in on two worries I have. The question follows the line of thought developed by the noble and learned Lord, Lord Lloyd. I should be grateful if, in replying, the noble and learned Lord the Attorney-General would give his view on the following. If this Bill had been passed and the convention had been activated by the 60 signatories, how would that have differently affected the arrival of ex-president Pinochet in the United Kingdom? It would help to clear my mind and would possibly help others.
I turn now to my worries. The first is a minor one. The Bill enacts Articles 6, 7 and 8(2) of the statute. I am slightly surprised that noble Lords have not directed their attention more to the content of those articles. Article 6 deals with genocide. Virtually all its provisions are unquestionable and present no problem. But one or two of the categories raise questions. One such example is,
- "actions which are aimed at destroying an ethnic or religious group ... in whole or in part ... by causing mental harm to members of the group".
Now I must share with the House my major concern. When I looked at Article 8(2), dealing with war crimes, I could hardly believe my eyes. It provides a long list. Some items I wholly accept; they present no worry whatever--for example,
- "Intentionally directing attacks against buildings dedicated to religion, education, art, science ... Killing or wounding treacherously ... Declaring that no quarter will be given".
- "Intentionally directing attacks against personnel, installations [etc.] involved in a humanitarian assistance".
However, I direct the attention of the House to sub-paragraphs (i), (ii), (iv) and (v) of Article 8(2)(b). The items come under the general heading of other serious violations of the laws and customs applied in international conflict. Sub-paragraph (i) refers to,
- "Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities".
I am concerned, too, by the reference in sub-paragraph (ii) to,
- "Intentionally directing attacks against civilian objects, that is, objects which are not military objectives".
- "Intentionally launching an attack in the knowledge that such attacks will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment".
- "Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives".
I am not an international lawyer, and it may well be that my astonishment simply reflects the fact that I have not kept up to date with the latest in the Geneva Conventions. But we have surely not forgotten the war which ended only months ago over Kosovo and against Serbia. Civilian targets? The radio and television centre in Belgrade? Objects of no obvious military use? Bridges over the Danube? Installations that have a major effect on the life of communities, as well as an environmental effect. I refer, for example, to the bombing of oil refineries and power generators. It is almost unbelievable that this part of the document should simply go through on the nod and without major amendment. Indeed, I cannot seriously believe that it will be the case.
If we read on through the document and the Bill, we see that all of this applies directly to military commanders. There will be no excuse for them if they defy the new convention and its law. Therefore, if they do partake in a bombing raid on, say, the bridges over the Danube or on the suburbs or major power stations around Belgrade, they will be committing an international offence. But what are they to do? Are they to defy their governments and obey international law? That really is nonsense. We need to hear a very considered explanation for the presence of these provisions and especially the way around them.
I may be exaggerating the position, but when my noble and learned friend responds to the debate I ask him not to conclude that I am deliberately trying to point out difficulties and possibilities that are perhaps remote or unreal. Frankly, on the face of it, it seems to me to be all too real. The problems are there in the convention that we have signed and in the Bill. Indeed, I believe that Schedule 8 lists the matters that I quoted from the convention.
Perhaps the following has some significance. We signed the document in either June or November of 1998. Of course, the war in Bosnia began in March/April 1999. It is just possible that those who devised all these words were not in touch with NATO and its peace-enforcement mission plans. Was NATO
committing a crime? When the number of signatories reaches 60 and the legislation comes into effect, being, perhaps, dated from the moment of signature in 1998, will my right honourable friends the Prime Minister and the Foreign Secretary be faced with the prospect of their arrest when visiting some other country in five or 10 years' time for their activities in Kosovo?As I said, we need answers to those questions. I am not in any way happy to have to put these points to the House. I very much hope that my noble and learned friend will be able to give me reassurances and explanations that will at least leave me satisfied for now.
5.53 p.m.
The Lord Bishop of St Albans: My Lords, it would be very unwise of a bishop, not least following the noble Lord's speech, to rise to speak in this House and make simplistic and naive claims about Christianity's role in creating a just society or a just world. Our track record as Churches in this respect is very patchy. Even those claims for Christian leadership in such matters for example, Wilberforce's fight to abolish slavery--often fail abjectly to mention that there were many Christians who were in favour of slavery and who brought to their terrible arguments a plethora of biblical "proof texts" as their justification. That kind of behaviour makes me hang my head in shame.
Therefore, I am very aware of some of the appalling things done throughout history in the name of the Church. Yet I am equally aware of those very courageous individual Christians and Churches who have, because of their faith and often at great cost with great heroism, tried to change the world for the better. Notwithstanding our failures and while acknowledging them, there is within the Christian faith a recognition that in a fallen world a proper relationship needs to exist between justice and peace. In a sense and at a philosophical level, the substance of the speech of the noble Lord, Lord Shore, was just about the ethical dilemmas of the relationship between justice and peace. Further, there is now an increasingly keen awareness among Churches that the plight of the most vulnerable in our world should always be at the forefront of our thinking; and that, if any society wishes to call itself just and civilised, it will be to the care of the vulnerable that we should look to test whether or not its claims are genuine.
I warmly welcome this debate, believing that the creation of the ICC may be one of the most critical and most honourable steps that we are likely to take in our generation to create a more equitable and righteous world. But, among others that have already been mentioned, there are two areas that seem to me to require further thought. The first relates to Britain as a potentially safe haven for lesser players from overseas who may have carried out the wishes of their particular tyrannical leader. If I have understood the situation correctly--and I may not have done--I wonder whether it is just or logical that a British citizen, who served as a mercenary, could quite properly be tried in this country for committing exactly the same crimes as a foreign national. Because of our understanding of
the relationship between law and territory, the foreign national living in this country would not necessarily be brought to trial. If that is the case, there seems to be a great anomaly, not to say a very great injustice.Secondly--and I may also have misunderstood this point--would it not be wise and generous to mention somewhere in the Bill, or elsewhere, the envisaged United Nations trust fund for victims? That would at least give some of the people who have suffered so severely some hope of justice.
The phrase that seems to me to sum up some of the debate comes from Nicholas Stewart, who said that our task is,
- "to see our national interests from a truly international perspective".
5.58 p.m.
Lord Clinton-Davis: My Lords, I rise somewhat reluctantly and ambitiously to participate in this debate. I say "reluctantly" because the noble Lords, Lord Howell and Lord Moynihan--and, to some extent, my noble friend Lord Shore--welcomed the changes envisaged by the Bill, but they did so with a certain reluctance. It is not easy to change and, to some extent, I echo their views. But I ask each of them one question: would they prefer the Bill as it is, with all its inadequacies (the same could be said of any international statute) to no Bill at all? Of course they would not. Indeed, I hope that they would not.
The noble Lord, Lord Lester, was enthusiastic about the Bill. I also welcome it, but I welcome it in a world that is far from perfect. The United Nations is living proof of the inadequacy of the rule of international law. But would we rather have a world without a United Nations organisation? I think that the answer to that is certain and clear.
Therefore I welcome the Bill with all its faults. We should appreciate that, increasingly, nations of the world have accepted it. There is a reluctance on the part of some in the United States to accept that point of view. However, I ask those in the United States whether they would rather have no United Nations at all? Perhaps some in the United States would prefer it if that were so, but it is our burden to go ahead with the Bill as swiftly as we can, whatever its inadequacies. However, it is clear that there should be a greater degree of political scrutiny and we should be more pervasive in what we seek.
The Bill seeks to fill a serious gap in international law. It is clear that individuals who have committed crimes of genocide--we understand what that means as it has been practised in Europe--crimes against
humanity and war crimes should be tried. It is right that the International Criminal Court should complement national courts, as has been argued.If we have criticisms, they do not seek to undermine the Bill but to improve it. The noble and learned Lord the Attorney-General may respond to criticisms when he replies to the debate, but there is still some point in placing on record some of the alleged deficiencies in the Bill.
First, with regard to the International Criminal Court itself, how many states have to ratify the statute? We have heard a number of different comments on that point today. I hope that the noble and learned Lord will make that point clear. To its credit, the United Kingdom signed the statute last November. It is now in a position to ratify. In my view it should lead the way in that regard.
The Government received some 45 submissions from a number of people who had read the original Bill. I am told that as yet the report has not reached the Library of this House. I hope that the noble and learned Lord the Attorney-General will be able to inform us whether and in what way the Bill reflects the submissions which have been made.
I am told that the Bill does not include the crime of aggression. What progress, if any, has been made in defining that crime? Will the House be given its place in coining such a definition? I know that we have at least seven years after the statute has come into force, but perhaps the noble and learned Lord the Attorney-General can give us some idea of the timetable.
I turn to the question of legal aid. So far legal aid has been organised on a national basis. The noble and learned Lord the Attorney-General will correct me if I am wrong, but I believe that legal aid is determined by the courts in which the defendant is due to appear and it does not apply outside England, Wales or Scotland. How can legal aid or legal assistance--if there is a distinction between the two--be applied as regards the International Criminal Court? The Explanatory Notes remain absolutely silent on that point. The issue may be referable to another enactment. The noble and learned Lord the Attorney-General obviously approves of that argument because he nods affirmatively. But is it not possible for the Bill to refer to that issue? We should not have to identify what the noble and learned Lord the Attorney-General has to say with regard to the Bill. It should be made clear in the Bill.
A defendant may have no or insufficient means to employ a suitable advocate. The case may not attract much attention. Paragraph 53 in the Explanatory Notes refers to a number of issues but I do not believe that it refers to legal aid. Why is that? That matter should be referred to in clear terms.
Paragraph 54 refers to powers conferred by the Bill,
- "to facilitate the voluntary attendance of expert witnesses".
Finally, paragraph 21 of the Explanatory Notes headed "Proceedings for delivery order" refers to Article 59.2 and states that,
- "The Statute does not ... specify which rights must be respected and nor does it specify what is to happen if the judicial authority determines that there has been a violation of (b) or (c)".
- "the person has been arrested in accordance with the proper process".
- "the person's rights have been respected".
- "In particular, nothing in the Statute allows a State to refuse to surrender a person to the ICC on the grounds that the person has not been properly arrested or his rights have not been respected".
What I have said amounts to a Committee point. My noble friend Lord Shore will agree because he made the point in the first place. These may be Committee points but they are of such importance that I hope the Attorney-General will make clear in his winding up speech the Government's stand on them. I welcome very much the enactment of the Bill. I hope that the number of countries which will ratify and sign up to its purposes will be numerous indeed.
6.12 p.m.
Viscount Waverley: My Lords, perhaps I may give double congratulations, first, to the Government on bringing forward this Bill, and, secondly, to the noble and learned Lord, Lord Archer of Sandwell, who has worked tirelessly on the issue. I hope that he feels a sense of personal satisfaction today.
The Minister's opening remarks were detailed and I look forward to the opportunity to digest them. From both the noble Baroness and Peter Hain, the Foreign Office Minister, we have a commitment from this country to tip the international balance away from impunity towards justice. However, while I am delighted that Britain will put its full weight behind the establishment of the ICC we must, I believe, attempt to ensure that this Bill will be sufficient to ensure the proper functioning of the court in the exercise of international justice.
International law has long been described as an imprecise science based as it is in part on state practice. It would be unfortunate if we added to the overall complexity by introducing unclear or incomplete definitions of war crimes; or failed to include aggression as a war crime--a point raised by the noble Lord, Lord Clinton-Davis; and if issues of jurisdiction and referral are not clarified.
Who will decide when a country has proved unwilling to investigate? Are there adequate existing international standards of universal applicability? Is
the court's remit perhaps a little too broad in these early stages? Are we seeking to try the "top dogs", the leaders, at the ICC or, as some would have it, any individual who commits, orders, facilitates or otherwise assists in the commission of the crime? If it is the latter, the court will be overburdened and parallel truth and reconciliation approaches will have no opportunity to thrive.Any legal system survives because it has the consent of the majority of those to whom it applies. We must be careful to ensure that the same applies to the jurisdiction and enforcement mechanisms of the ICC. We must be quite clear that this initiative is a genuine one and not an exercise in politicking. If we so disable the court at its inception that any exercise of independence or impartiality is impossible, then it will lose credibility and moral authority. Universal jurisdiction must be accompanied by universal application.
No one can be above the law. On a previous occasion during an Unstarred Question, I sought to introduce consideration of terrorism and narco-trafficking as crimes against humanity. Obviously the possibility of British nationals' involvement, in particular in funding these operations, is considerable. Is there scope for inclusion under Article 7, section 35(k)? If not, I again ask the Minister to widen consideration to those areas.
I believe we all know that in the area of terrorism organisations and individuals based in the United Kingdom are funding or otherwise aiding terrorism outside the United Kingdom, generally giving this country a reputation as a safe haven. If I heard the Minister's remarks correctly concerning the international targeting of individuals, am I to understand that from this point on individuals who are deemed to have ordered, for example, an execution of an individual abroad would now face the ICC, should the UK system elect not to pursue justice? By extension, will proven funding of an overseas terrorist organisation now finally be stopped by the UK authorities, so rendering it unnecessary for a state signatory to pursue the case through the provisions of the ICC?
In conclusion, it is vital that we not only record our commitment to establishing the ICC but that we ensure that every safeguard is in place to deliver international justice. That is the clear message that the world's tyrants will fear.
6.18 p.m.
Lord Campbell of Alloway: My Lords, the need for such a court has been recognised by every noble Lord who has spoken. However, the main problem is how to resolve the practical difficulty of impleading the strong. That has been referred to in some detail by my noble friend Lord Moynihan' the noble Lord, Lord Shore, and others. It is as yet a practical difficulty which has not been resolved and may not be able to be resolved. But it is right that if possible an all-but-universal norm should be set to deter and serve as an aid to peacekeeping and diplomacy and, when
possible, to be enforced by arrest, adjudication and sentence. It will be welcomed no doubt as a beacon of light for those of whatever origin or faith, or none, who in times of peace or war, or in situations short of war, could suffer grave, perhaps the ultimate, indignity.The court is assuredly a grand design, rooted and grounded in justice, the servant of human society, which could afford an effective means of resolution when the age-old fault lines erupt with volcanic intensity, but would it? Military intervention has afforded no lasting settlement and justice could do so only if it could reach out to and deal with the strong as well as the weak and not become a cosmetic exercise or a placebo for the conscience of the world.
There is much on which we have to be satisfied before we can ratify. I agree with my noble friend Lord Howell of Guildford that we should not rush to ratification. There are serious reservations, particularly in the United States, which have been referred to by my noble friends Lord Howell and Lord Moynihan and others. There are improvements to be considered and appropriate safeguards to be introduced. As the noble Lord, Lord Lester of Herne Hill, rightly said, the Bill stops short of a satisfactory basis for jurisdiction. It fails to implement the complementarity principle--that is terrible treaty jargon. In those regards, it requires amendment.
Articles 6 to 9 of the statute can be amended only by members of the assembly of state parties. I read Article 8(b) with incredulity and would have referred to it, like the noble Lord, Lord Shore, if I had not been going to refer to another aspect of Article 8, to which I shall come in a moment.
Consideration must be given to improving the safeguards not only in the matters under Article 8(b)(i to iv), but for prisoners of war taken in international armed conflict, who are not covered by Article 8(c)--indeed, they are excluded. An agreement on those matters should be sought before ratification. We must ensure that threatening a prisoner of war with any form of slavery or humiliating or degrading treatment, implementing such a threat or selecting or using a prisoner of war as a hostage is expressly prohibited.
Relevant material is available from the Ex-Prisoners of War Association, of which my noble friend Lord Haig, who was one of the pre-selected hostages held at Colditz, is president. This narrative demands a declaration of interest, as I spent nearly five years of an indeterminate life sentence in Colditz, until I was fortuitously released in mid-April 1945 on the surrender of Colditz to the United States armed forces. That was fortuitous, as the castle was not designated as a prisoner of war camp on the campaign maps. The German armour was around the camp pending re-engagement. But for a home-made Union Jack, which was spotted by chance fluttering in one of the heavy artillery gun sights, we should have been taken out. As President of the Colditz Association and an erstwhile gunner subaltern on the reserve, one does not presume to speak on behalf of members, some of whom were of field rank and later became admirals or generals. The few members who survive prefer to speak for themselves.
My speech may disturb some noble Lords, as the House must recognise that if Hitler had won the war, the disposal of prisoners of war would have been truly horrendous. Colditz, a former palace of Saxony, remained in use as a lunatic asylum until it was occupied by an international closed community of prisoners of war from the three armed services. We were under the disciplinary command of our respective senior officers. There was a joint command on escape co-operation.
Over five years, the composition varied from time to time. That is relevant to the proposed new provisions. In the early days we were 25 in the British quarters, under the command of Colonel German. There was a massive presence of French, under the command of General Le Brigant. There were also Dutch and colonial troops and the brave remnants of the Polish cavalry. At the time of our release, there were many more British, together with Australians, Canadians after Dieppe, with one VC, New Zealanders, with another VC, Czechs, Poles and Yugoslavs who had served with the RAF, Gaullist French and SOE, all under the command of Colonel Tod. The Americans were under the command of Colonel Duke and the Poles were under the command of General Bor-Komorowski. By that time, the French and Dutch were no longer with us, having been removed in 1943. Just before our release, a number of prisoners of war with family connections of no little consequence who were held at Colditz as hostages had been removed ahead of the US advance. I shall return to that in a moment.
In the early days, before the tide had turned in the battle for the Atlantic and before the United States entered the war, a tannoy was rigged up in the courtyard to give us a chilling blow-by-blow account of each disaster befalling every stricken or sunken vessel. A Feldwebel--a sort of RSM--came up and said, "For you the war is over. You will be put to work in the salt mines of Silesia. Without an eye guard you will go blind within three months and you shall die there". There is reason to believe that that was not his own idea, but a message. It was then state policy to use those from occupied territories for slave labour. Later, Russian prisoners of war taken on the Ostfront were so used. The Geneva Convention would have been repudiated as yet another scrap of paper. There was no international criminal tribunal and no way in which the implementation of state policy could be obstructed. If Hitler had won the war, all of us at Colditz--all prisoners of war--would have been liable to be put to slavery, and assuredly many would have been.
Perhaps I may return to the prominentes, which included Elphinstone, Lascelles and Hopetoun Winant, as they then were, Haig, Winert, the son of the United States ambassador at the Court of St James, Romilly and others. On 13th April 1945 they, together with General Bor-Komorowski and the Polish officers under his command, were removed from the castle to be taken to Hitler's last fortress at Berchtesgarten. That was so that, when put to torture, their lives could be bartered for the freedom of those later condemned at Nuremberg.
The plan was devised probably in the wake of Stalingrad, when it occurred to the German high command that they might not win the war. The prominentis were selected as part of the plan and were kept in separate quarters and guarded night and day.Fortunately, the senior British officer, Colonel Tod, had forewarned the Swiss protecting power on his last visit prior to the United States advance, as we knew from our radio. Therefore, when they reached Konigstein, the Swiss intervened and persuaded General Berger to give them safe conduct through the German lines and then took them and handed them over to General Patch at the United States headquarters in Augsberg.
This narrative of events, when Hitler and those condemned at Nuremberg knew that they had lost the war, is relevant to the proposed provisions for further protection to which I refer. When the noble and learned Lord comes to reply, I wonder whether he could advise the House whether, in his opinion, there is a case for further provision. Article 8 makes no provision for dealing with any of these matters. I wonder whether the noble and learned Lord could also advise the House whether trials within the remit of Articles 6 to 9, in which the victor impleads the vanquished, should henceforth be conducted by the ICC. Could he also advise whether, when the ICC has been set up to implement the statute, an indictment laid under the War Crimes Act would be remitted to the ICC for the conduct of proceedings and whether the War Crimes Act should remain on the statute book. I apologise for making such a long speech.
6.33 p.m.
Lord Archer of Sandwell: My Lords, it is not on every occasion when I intervene in a debate that I shower praise on the Government. Even today, I do not pledge my unqualified approval for every jot and tittle in the Bill. But fair's fair. The Government's record in the negotiations leading to the statute, in their lobbying since the statute, and in finding time for this Bill despite the other pressures on their legislative programme, have earned not only my approval--whether or not that may serve as a comfort to them--but the approval of a wide sector of civil society not usually noted for its praise of governments of whatever political complexion.
Both my noble friends on the Front Bench have earned a special commendation for their appreciation from the beginning of the negotiations of the importance of this opportunity. Without appearing too fulsome, perhaps I may add a word of gratitude to my right honourable friend the Foreign Secretary, who I believe will be long remembered for his vision in this as in other matters.
As the noble Lord, Lord Lester, and the noble Viscount, Lord Waverley, were kind enough to remark, some of us have waited a long time for this day. When I first emerged from my political chrysalis--admittedly deep in the recesses of history--the prevailing wisdom was that governments had a
duty to protect their own nationals so far as they could within the rules of private and public international law, to punish their own nationals when within the jurisdiction they committed offences against nationals of other countries, and, beyond that, simply to maintain law and order within their borders. National sovereignty was sovereign.However, in the 20th century events in Europe, which had believed itself to represent the ultimate in civilisation, persuaded the world that while bullies and tyrants anywhere could murder and butcher with impunity, peace and security were endangered everywhere because we humans are members one of another. Even in 1945 the International Law Commission began to explore the concept of an international jurisdiction. When in 1947 the General Assembly discussed the genocide convention, the topic was widely, if not particularly loudly, ventilated.
As my noble friend the Minister said in opening the debate, more recent events have reawakened the world's imagination. Events in Yugoslavia, Rwanda and Sierra Leone, which have been mentioned by a number of noble Lords, have persuaded governments that there are some depths of human wickedness and some degrees of human suffering which cannot be dismissed as someone else's business, and that agreeing on standards and insisting on judgment are the right and the duty of the global community.
We come to this debate from differing backgrounds. The noble Lord, Lord Campbell, spoke very movingly of his own experiences. My noble friend Lord Shore made a rather different point. But all of us agree that those who contemplate committing horrific crimes against humanity should know that they will suffer the curse of Cain, and that the blood of their victims will follow them wherever they seek to hide, not primarily out of malice towards them but, it is hoped, for the protection of their potential victims.
We are debating the Bill; we cannot amend the statute. Of course, criminals may evade justice in one way or another. That is true of any criminal. However, like Senator Pinochet, who was mentioned by the noble and learned Lord, Lord Lloyd, they can never be sure what the future will hold. Of course the statute was a compromise; otherwise, we would never have got a statute. But it is not the end of the story; it is the beginning. And it will be a continuing process towards the global rule of law.
It is a jurisdiction which can be made effective. When I last checked, the International Criminal Tribunal for Rwanda had already recorded seven convictions and 35 cases were awaiting trial. The Security Council has found it necessary to authorise the appointment of more judges. No one ever considered that there would be thousands of convicted war criminals in prison--simply enough to make political mass murderers stop and think.
We have just seen an international tribunal take place in Tokyo to rule on the allegation of sexual slavery practised by the Japanese army during the Second World War. A few weeks ago I noticed that the National
Council of Resistance in Iran had called for an international tribunal to try certain of the mullahs for murder and torture.Of course, now that the world has accepted the responsibility of the international community to protect victims, there will be a temptation to drag that concept into political controversies. After the Falklands war, there were allegations of war crimes by British military personnel. They were investigated, I believe, carefully and rigorously, by the Metropolitan Police, and considered by the Director of Public Prosecutions, although and no further action was taken. It might have been more satisfactory, particularly for those against whom the allegations were made, if they had been investigated under a reputable international procedure. I fully take the point made by my noble friend when she introduced the debate about complementarity.
One great advantage of a permanent court, an agreed statute and established procedures is that proper safeguards for defendants can be institutionalised and the court can be insulated from improper political pressures.
Having played a commendable role in the negotiations leading to the statute, the Government are understandably anxious to be among the first 60 ratifications. I pay tribute to the many NGOs, some of them mentioned by my noble friend Lady Kennedy, which have campaigned for this result and which have--I hope that my noble and learned friend the Attorney-General will confirm this--made available to the Government a body of expertise that even the Government's own experts found helpful, in particular those NGOs that formed the coalition for the International Criminal Court. Expertise is not the monopoly of governments, and dialogue between the Foreign Office and civil society can be a source of enrichment to both.
The Bill is to be welcomed for many reasons. Internationally, it is a the pledge that Britain is not about to repeat the mistakes made so often during the past half century of absenting ourselves when a new adventure was taking shape but, when events drove us willy nilly to the table, complaining that if we had been there earlier we should have suggested something different.
Domestically, it is to be hoped that if national governments provide a domestic jurisdiction for dealing with some cases, that would alleviate the need to channel them all through the international procedure. The great benefit is the establishment of an international culture, as my noble friend Lord Shore of Stepney said. At a date not far in the future I believe that even the American Senate--I emphasise the Senate--will admit that some of the disasters that some of its members predicted have proved to be false prophecies and will accept that no state claiming a place in the community of nations can hide permanently in the 19th century.
I turn, admittedly belatedly, to the content of the Bill. It is disappointing that, as so often when a British government have played a noble role and could have
taken the stage and received the applause that the world was waiting to accord, they could not quite bring themselves to rise to the occasion. The Government could have included in Clause 51 a provision conferring on British courts a universal jurisdiction of the kind that is already on the statute book in the Geneva Conventions Act. That would have avoided some of the problems arising from the complementarity principle, alluded to by the noble Lord, Lord Lester. At a later stage in our deliberations, some of us may seek to institute further discussions about that. I assure the noble Lord, Lord Howell, that he will not be totally alone. The Government are clearly open to dialogue. It appeared from the consultation document that the Government were contemplating retaining diplomatic immunity for offences under the Bill so that a future Pinochet could still rely on a principle that was never intended for that purpose. They have listened. That fact is reflected in Clause 23, although there still appears to be a gap in the domestic jurisdiction, which is open to discussion.However, I say at once that I do not propose to embark on a game of poker with my noble friends. I answer the question of my noble friend Lord Clinton-Davis: if the Bill were lost, or if it did not proceed quickly enough to enable us to be among the first 60 ratifications, the tragedy would far outweigh our disappointment about a Bill that could have been better.
I hope that I will be permitted a closing comment in this debate, which many people will read. There may be those among my friends in NGOs who believe that they should lend their support to nothing less than the whole of what they had hoped for. That dilemma does not arise for the first time. In 1833, when at long last the anti-slavery movement in this country was in sight of the objective that it had fought and hoped for--the abolition of slavery in the British empire--the movement split because the government offered emancipation subject to a provision imposing a period of apprenticeship on freed slaves, and compensation for the former owners. William Wilberforce was dead, and Thomas Buxton, who led the movement, believed that the best should not be the enemy of the good. He and those who agreed with him accepted the government's terms. There were others who accused them of betrayal, but there are few historians of the movement now who blame them--certainly not the liberated slaves and their descendants, nor the potential victims.
I believe that we are privileged to take part in this historic debate, and I venture to predict that within a generation the concept of global responsibility for crimes against humanity will have become so much a part of the global legal order that most people will have forgotten that there was a time when it had to be worked at.
6.46 p.m.
Lord Monson: As one of the minority of lay Members speaking this afternoon, I am not qualified to discuss most of the technical details of the Bill but I would like, if I may, to comment on its principles and
implications. I must try to do so with caution, otherwise Members of this august Chamber may suddenly resemble a Bateman cartoon, with hair standing on end, jaws dropping and hands raised in horror. From that, one may deduce that I have considerable reservations about the Bill, heretical though these words may sound.First, the Bill is surely yet another step in the direction of world government. As I pointed out the first time that I inflicted my views on the public at large 40 years ago, if a world government were in place, there would be no political asylum for anyone anywhere. Moreover, a world government would soon become a tyranny--a benign tyranny, of course. However, a benign tyranny that is utterly convinced of its own righteousness is in some ways more alarming than a malign tyranny, which usually contains within it the seed of its own eventual destruction, in the form of the human conscience. However, those sentiments will cut little ice with those who are either indifferent to or enthusiastic about the prospect of world government, and I shall therefore give some further reasons.
An international criminal court, like all similar organisations and all bureaucracies that have ever existed at any time, is bound to become more and more activist in order to justify its existence. That has nothing to do with weaknesses or failings of individuals--those working in the court will doubtless be of the highest calibre and will be motivated by the noblest ideals--but it has everything to do with the eternal verities of human nature. That is bound to mean that sores will be re-opened, when those on the spot may have decided that the lesser of two evils is either to let sleeping dogs lie or to deal with past oppression and violence by means that exclude criminal prosecution and may even exclude civil restitution. In other words, they take the view that there are some objectives that must take precedence over justice. One thinks, first and foremost, of South Africa post-apartheid, post-1975 Spain, post-1990 eastern Europe, where there have been hardly any prosecutions, and, of course, of Northern Ireland. How disconcerted the British Government would be if an international body, composed mainly of individuals living thousands of miles away with little knowledge of the situation on the ground, declared that justice must prevail and that those deemed guilty of mass murder or torture must not escape prosecution and, if convicted, must not be released after serving no more than a year or two of their suitably lengthy sentences.
If the Bill had come into existence, say, 55 years ago in 1946, the court would have had its hands full, what with the killing of approximately one-third of the population of East Timor and the now largely forgotten earlier killings of tens of thousands, some claim hundreds of thousands, of Chinese throughout Indonesia on the grounds that they were Communist sympathisers; massacres by both sides in Vietnam; massacres when Bangladesh was breaking free from Pakistan; massacres at the time of Indian partition,
though they may have been more spontaneous than directed from above; massacres in Algeria both before and after 1962; massacres by Syrians and, to a lesser extent, Lebanese, Israelis and Palestinians; and in Europe the expulsion (and sometimes the murder) of over 1 million Sudeten Germans up to one year after VE Day.If the Bill had been in existence before World War II, it would have had to pursue not only German and Japanese war criminals, but would also have had to go into numerous Russian atrocities which are unaccountably omitted from the War Crimes Act. The writer, Anne Applebaum, described how, when Soviet forces invaded East Prussia early in 1945, they literally crucified German women, children and elderly men by nailing them to barn doors. We all know about the rape of tens of thousands of women from eight to 80 in Vienna. Of course, those were acts of revenge; they did not occur in a vacuum. But revenge has never been held to justify such behaviour.
The court might have overridden Churchill's decision (taken for raisons d'etat) not to prosecute Italian generals responsible for atrocities in the Balkans in 1943 following the Italian surrender. It would also have to examine the thankfully many fewer war crimes perpetrated by the western allies. I remember vividly a school lecture in 1944 in which an American brigadier general boasted that during the Italian campaign he ordered his men to take no prisoners at all. Even at the gung-ho age of 12 in the gung-ho atmosphere of successive allied victories at that time, I found that boast somewhat disconcerting.
The British Army of course--this is universally agreed--behaved better than anyone else. But even we were not immune, as I know from reliable first-hand accounts from people who served both in the European and Pacific theatres. I was thinking originally only of killing prisoners in cold blood. But from what both the noble Lord, Lord Howell, and the noble Lord, Lord Shore, said, it would appear that the Bill, if it had been in force then, provides that our airmen could have been prosecuted for bombing residential areas of German cities.
If the court had come into existence as long as 80 years ago, it would presumably have had to prosecute those who drafted and signed the 1923 Treaty of Lausanne, which set in motion ethnic cleansing on a truly massive scale, as well perhaps as those who expelled at gunpoint at least 110,000 Protestants and pro-monarchist Roman Catholics from the south of Ireland at approximately the same time.
Despite all that, it may be argued that provided states could be given the right to opt out of the provisions of the Act in favour of reaching their own internal settlements, a permanent court would surely be preferable to the present ad hoc arrangements which are apparently favoured by most, I read, of the United States Senate and Congress. In principle I agree. There is something distasteful about only going for "soft" targets, such as leaders of small countries which are not nuclear powers, which possess no oil or other mineral reserves to speak of, which are not
strategically situated, whose inhabitants are not adherents of a religion which promises eternal paradise to those who are killed in combat fighting for their faith and where there is no huge Diaspora scattered throughout the western world, some of whose members are likely to commit acts of terrorism or sabotage if they felt their leaders back at home were being unjustly persecuted, as they saw it.So casting the net wider than those relatively small number of countries is right in principle. But in practice things are likely to turn out rather differently, as both the noble Lords, Lord Howell and Lord Shore, pointed out. However badly they behave, I do not believe that politicians or military men from Russia, China, Burma, Indonesia, Iran, Iraq, Syria, Libya or Algeria will ever come before the court as far ahead as one can reasonably look. I have my doubts too about those from the United States, India, Pakistan, Nigeria, most Latin American countries and Israel. At risk, therefore, will be those from smaller countries like Sri Lanka or Lebanon, or some of the less important African nations together with those from western and central Europe, and highly improbable candidates like Canadians and New Zealanders.
Even so, it will no doubt be argued, is not imperfect global coverage better than virtually no coverage? Even if only a handful of people are deterred in practice from inflicting unnecessary suffering, is that not worth it? The answer has to be "perhaps". One of the reasons the answer cannot be "definitely" is that the prospect of prosecution may encourage a ruthless politician or soldier to go much further than they originally intended by making sure that they eliminated all potential witnesses to their crimes.
Finally--this may be Committee stage material and if so I apologise for raising it now--I should like to say a brief word on Schedule 8, Article 8, which lists war crimes. Ridiculously, dumdum bullets are outlawed, but not the new bullets which splinter into 100 or more fragments when they hit human flesh, causing far worse injuries than a soft-nosed bullet does. Nor are the thermobaric bombs and shells used by the Russians against the people of Grozny, the blast from which apparently sucks people's eyeballs out, among other things. Surely something ought to be done about those omissions.
6.57 p.m.
Lord Goldsmith: My Lords, I too warmly welcome the introduction of this Bill, which will enable this country to ratify the statute of the international criminal court.
This Government played an important role in securing agreement on the statute of the court. If I may say so, the commitment more generally of this Government to human rights is very much to be praised. In the Human Rights Annual Report 2000, my right honourable friend the Foreign Secretary said,
- "No British Government has given a higher priority to human rights than this one".
Why is the court so important? If I may say so, that has been powerfully explained by my noble friend Lady Scotland, by my noble and learned friend Lord Archer with passion, by the noble Lord, Lord Lester, and, with clear logic, by the noble and learned Lord, Lord Lloyd of Berwick. It is particularly plain, if he will forgive me saying so, that when one of the more hesitant voices in the Pinochet case supports this Bill as an important step towards justice and world peace, that should be very much heeded.
The preamble to the statute says that the court has a purpose; that is, to put an end to impunity for the perpetrators of grave crimes, and thus to contribute to the prevention of such crimes.
As my noble friend Lord Shore clearly demonstrated, that deterrent element is an important part of what the court will produce; that is, the fear that prosecutions may in future come about if particular conduct is engaged in. The need is for the court to establish individual accountability for the violation of international human rights' standards. No clearer justification for the court can be found than in statistics provided by the United Nations on its website. I find such statistics both horrifying and hard to believe. In the past 50 or so years there have been 250 conflicts; 86 million civilians, mostly women and children, have died, and over 170 million people stripped of property, rights and dignity. Many are simply forgotten while the men responsible walk free. The court is needed as a most important element in the strategy of trying to bring to an end that sort of injustice and evil.
At the heart of the need for the court is a need to reassess the idea of state sovereignty. It was probably John Austin, in his lectures in jurisprudence in University College in the early 19th century, who most developed the idea of state sovereignty; the idea that law is a body of rules fixed and enforced by a sovereign political authority that led to the view that there could be no such thing as international law as there is no sovereign political authority able to enforce it. It also led to the view that no individual within a state could complain outside that state about treatment because it was for the state, the sovereign political authority, to determine what happened in that state.
In many ways sovereignty is a good concept. It allows citizens to order their own affairs without external interference from powerful neighbours. But sovereignty--or at least this exaggerated notion of sovereignty--has also provided an excuse for despots behind which they can hide to justify no interference in the domestic affairs of the country. Many changes have been made over the past 50 years which have led towards an erosion of that sovereignty. However, it will take this court finally to establish not just that there are international standards but that there is a proper mechanism to enforce them.
In 1950 the great international lawyer, later a judge of the International Court of Justice, Hersch Lauterpacht, stated:
- "the individual has now acquired a status and a stature which have transformed him from an object of international compassion into a subject of international right".
Those are my reasons for warmly supporting the Bill. Before I turn to the content of the Bill, perhaps I may comment on two particular themes which have emerged in the debate. First, the noble Lord, Lord Howell, started warmly to support the Bill. However, he appeared to lose his enthusiasm towards the end of his remarks. I respectfully suggest that one should look carefully at the points he made. I did not find them persuasive. Perhaps highest among them was the concern that the statute establishing the court might not give rise to the rights of fair trial to which citizens of this country are entitled. He put that on the basis that that was a concern of the United States. I am not sure that it is the concern of the United States or those concerned about this statute, or whether the idea of a politicised court, the fear of an interference with sovereignty, does not lie more at the heart of those concerns.
However, when I look at the statute of the court--I respectfully urge the noble Lord, Lord Howell, to do so--I find all sorts of safeguards. In Article 15 I find the basis for an investigation by an independent prosecutor. Article 22 contains the principle that there should be no criminal responsibility unless the matters constituted a crime at the time. Article 40 contains the idea that the judges as well as the prosecutor must be independent. I could go on through the statute to the right of appeal. However, I draw particular attention to Article 67, which provides the provisions for a fair trial: the right to be informed in detail of the charges; the right to have adequate time for preparation of a defence; the right to be tried without undue delay and the right to examine and cross-examine witnesses--indeed, all the safeguards which we find in the European Convention.
I understand that in the United States there is a different constitutional issue, on which not all lawyers agree; that is, whether there is a problem under the United States constitution in allowing a "foreign court" to try US citizens. That is not our problem. I very much hope that it is one which the United States' authorities will overcome.
The second theme raised was a concern that the statute--it is the statute and not the Bill--may go too far in the definition of certain offences. My noble friend Lord Shore developed that point with power and eloquence. I am not a public international lawyer. However, my understanding from that deficient background is that the statute identifies what is now recognised to be the definition of war crimes. Perhaps I may briefly refer to the example given by my noble friend, which is reproduced in Schedule 8 and relates
to incidental loss of life or injury. I draw attention to the fact that the full provision contains a number of important safeguards; that the act should be intentional and done in the knowledge that certain events will occur. In particular, the question is whether that incidental damage, injury or loss of life would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.I believe that it is only in the clearest cases, in which there have been direct and deliberate attacks on civilians for no discernible military objective, that that definition would apply and that today we would say that that is, indeed, a crime.
The two strands of concern about the Bill are not ones I share. However, before I conclude I wish to make two other points. The first relates to the question of diplomatic immunity. I readily acknowledge the great improvements to the Bill which have been made. The addition of Clause 23 to deal with diplomatic immunity is undoubtedly one such improvement. However, a distinction is drawn between diplomatic immunity attaching to a person by reason of connection with a state which is party to the statute and one which is not. In at least two cases the court may have jurisdiction though that particular exception for immunity would not apply. I refer first to the case in which the person is subject to jurisdiction because he has committed these offences in another country of which he is not a national, and it is only that other country which is a party to the statute, and, secondly, to cases where the Security Council refers the matter to the court. Perhaps when my noble and learned friend the Attorney-General replies he would indicate whether there is still concern over immunity and how that might be dealt with.
The other more important question was referred to by several speakers, most recently by my noble and learned friend Lord Archer of Sandwell. It is the accountability gap. Only when all states are parties to the statute will it be inevitable that the court has jurisdiction in all cases. That will not happen--or will not happen for a long time. Yet this country could itself have taken universal jurisdiction by not limiting, as Clause 51 does, the right to prosecute to the case of British nationals or offences committed in this country.
As the right reverend Prelate the Bishop of St Albans said, it gives rise to anomalies. The situation could arise where two people residing in this country are both accused of commiting the same atrocities. However, as one is a national and the other is not, we could prosecute the one but not the other, notwithstanding that there might be the clearest evidence and the clearest public demand for prosecution.
There is a second anomaly. We have universal jurisdiction in certain cases; for instance, the convention on torture and certain breaches of the Geneva Convention. In those cases, we can prosecute those who have committed offences abroad who are not British nationals but are sheltering in this country. It is anomalous that we could prosecute a man for torture but not for murder.
I accept that those are important and difficult questions, but I hope that the Government will think again about whether they can take the step of filling the accountability gap. People are already raising the spectre that the United Kingdom might become a safe haven for war criminals and those who commit atrocities. That would be terrible. I understand that Canada, New Zealand and Belgium in their statutes have assumed universal jurisdiction but that Germany and Switzerland, to name but two, have indicated their intention to take on that jurisdiction. Therefore, I hope that the Government will reconsider the issue.
Subject to that important point, I repeat my warm support for the Bill. Secretary-General Annan described the statute as,
- "a giant step forward in the march towards universal human rights and the rule of law".
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