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Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way and I apologise for interrupting the list of interrogatories that he is administering to the luckless Attorney-General. I want to encourage the noble Lord to go further. Does he agree that Article 59(2) of the ICC Statute plainly contemplates that a person arrested is to be brought before the competent judicial authority in the custodial state, which shall determine in accordance with the law of that state, among other things, whether the person's rights have been respected? Is it not therefore rather strange that, instead of the Bill providing for the determination by the UK court by judicial review as to whether rights have been respected under UK law, all that can be done is for the Secretary of State to pass on something which the UK court has itself mentioned? Does that accord with Article 59.2?
Lord Kingsland: My Lords, I am much obliged to the noble Lord for drawing the attention of noble Lords to that part of the Rome Statute. The noble Lord, Lord Lester, made the same point in a different context when he drew attention to the right of review covered later. I respectfully submit that he was quite right to say that it is a pity that the Bill allows only for a habeus corpus remedy when a judicial review remedy would be much more appropriate.
Underpinning these questions--they were more harshly described by the noble Lord, Lord Lester, as interrogatories, although I am sure that the noble and learned Lord the Attorney-General does not perceive them as such--is my fear that the model taken for Clause 5 is not the model that should naturally flow from the principle of complementarity, so ably outlined by the noble Baroness the Minister, but a model which seeks to reflect a practice which has grown up over the past few years as a result of the jurisprudence of the ad hoc courts for Yugoslavia and Rwanda.
This has been a splendid debate. All noble Lords will have been greatly moved by the intervention of my noble friend Lord Campbell of Alloway. Although some criticisms have been made of the outstanding speech of my noble friend Lord Howell, we remain to hear--I am sure that the response will be delivered in Committee--the reasons why the noble Baroness is so confident that the procedures set out in the Rome Statute accord with those set out for our citizens in the European Convention on Human Rights.
7.52 p.m.
The Attorney-General (Lord Williams of Mostyn): My Lords, I believe that we all recognise that this evening we are starting to make history. My noble and learned friend Lord Archer of Sandwell deserves our full-hearted gratitude and I particularly wanted to acknowledge the extremely generous tribute made by the noble Lord, Lord Kingsland, to my noble and learned friend. This is not the first time that my noble and learned friend has undertaken such noble work. Let us never forget that it was he who moved the amendment to the Human Rights Bill which did away for ever with that grotesque blot on our jurisprudence, capital punishment. I shall not be partisan, but it will be remembered by all noble Lords that no vote was registered against his amendment. Voices were raised, but no one voted.
This is an extraordinary time. I think that it is right to say that full credit ought to be given to my right honourable friend the Foreign Secretary. He has been quite indefatigable in pursuing this purpose. It is not a purpose that is likely to secure enormous electoral support, in that many people would not put their mind to this topic while casting their vote.
Perhaps I may mention two points by way of background. Last week I spend two days in Holland, one at Camp Zeist to attend the closing stages of the Lockerbie trial. The following day I attended the International Criminal Tribunal for Yugoslavia on the very day that Madam Plavsic attended to be indicted. If we had held these exchanges 10 years ago and I had recited that short history, noble Lords would have thought that I had--temporarily, I would hope--taken leave of my senses.
In 1999, I was in Cambodia, talking to a Minister of justice who endured strains and pressures that none of us can possibly imagine. I discussed with him, reasonably and carefully, the prospect of establishing a tribunal to bring to account those who had committed dreadful and unimaginable crimes under the former regime. There was some difficulty. However, now the United Nations and the Cambodian Government have agreed on the creation of a special court involving both Cambodian and international judges and lawyers. On 2nd January, the parliament of Cambodia unanimously approved the law to establish a special court. So when we are asked to pass this Bill, perhaps we should undertake the task in the context of other, nobler acts to which our colleagues in other jurisdictions have put their hands.
Perhaps I may recite to noble Lords only some of the countries--I have picked them almost at random, though perhaps not wholly--who have signed the statute. As my noble friend the Minister pointed out, 139 have already signed. These include Algeria, Angola, Argentina, Bolivia, Cambodia, Chile, Colombia, the Democratic Republic of Congo, Eritrea, the Federal Republic of Yugoslavia, Haiti, Nigeria, the Russian Federation, Sudan, the Syrian Arab Republic, Zimbabwe and--I know that this recent signatory will please my noble friend Lady Kennedy--Iran. Not all of those names, which I have chosen at random, would have been immediate candidates for your Lordships' thoughts as regards who might be among the early signatories to this important statute. As my noble friend has mentioned, 27 countries have already ratified the statute. It is our purpose and determined desire to be among the first 60 countries.
This will be a transformation in the jurisprudence of mankind. I entirely agree with what was said by my noble friends Lord Shore, Lord Goldsmith and Lord Cocks, that this is not simply to bring about punishment, because one of the true and moral purposes of law is to prevent criminality. This is not, to use the jargon, a "signal". This is a weapon. If those who wish to commit gross crimes require any warning, it is to be found here.
A number of questions were put. They were not, I think, interrogatories, which would require me to respond on oath. If I get anything wrong, I hope that most noble Lords will forgive me. I respected and appreciated the contribution made by the noble Lord, Lord Howell of Guildford. The caution and prudence he demonstrated and the questions he put were legitimate. Not all states will sign with equal good faith. Furthermore, not all will ratify with anything other than reluctance. To many of us, that would imply that perhaps the statute and our Bill are quite useful steps forward.
The noble Lord also asked whether this would affect only the weak and the defeated. I think not. When Madam Plavsic surrendered herself to an international court, that suggests that this does not cover only the weak and the defeated. Will it be simply cosmetic? I believe not. One does not wish to be overly dramatic, but if there were still chancellories around the world, I think that some groaning might possibly be heard. Will it catch only the big fish? The growing and developing experience of the International Criminal Tribunal for Yugoslavia is demonstrating the contrary. I do not wish to prejudice any future arrests or trials, but one can see--I put this quite neutrally--that up the scale of responsibility, more and more people are in fear, probably legitimate fear, that they may well have to answer to a lawful tribunal for their alleged crimes.
However, the noble Lord is right to say that the United States has reservations. We shall have to wait and see. Neither my noble friend the Minister nor I know more than that President Clinton signed the treaty on 31st December last year. We understand
perfectly well that some of his congressional colleagues--as they will continue to be when he has passed from his presidential stage--have serious doubts. I echo what a number of my noble friends have said: this is not a perfect Bill. It is not a perfect statute, but it is infinitely better than doing nothing at all.The noble Lord, Lord Lester of Herne Hill, asked a number of questions. One of them, as the noble Lord, Lord Kingsland said, related to the question of appeal by way of judicial review in so far as it was in harmony or disharmonious with the question of judicial review. I shall be writing to the noble Lord on that question. I shall copy my reply to other noble Lords who have shown an interest and I shall ensure that a copy is placed in the Library.
There is no doubt that it is an important question. It raises the general issue of the relationship between judicial review and habeas corpus, a matter on which the noble Lord has touched before in correspondence. He will know that the general issue is being considered by the Lord Chancellor's Department at the moment. There has been the Bowman review of the Crown Office List and it may be--I genuinely do not know--that some advantage may come from those questions. I simply do not know. When I have further information, even if it is disappointing--I do not know whether it will be--I shall communicate it to the noble Lord.
The noble Lord, Lord Lester, also raised the question of scrutiny, in this context and more generally. We are open--I say this quite deliberately--to considering ways of contributing to the efficient parliamentary scrutiny of treaties. I have to say--not simply because I am standing in this House--that this House does extremely well in carrying out that work. We made that point quite clearly in evidence to the Royal Commission inquiry into the reform of this House. Essentially, of course, it will be a question for each relevant House but, as far as we are concerned, we think that there is substantial virtue in the proposal.
The noble Lord, Lord Lester, raised questions about immunities. The Rome Statute provides that immunity shall not be a bar to prosecution before the ICC. States which have signed and ratified will have agreed to that provision and therefore diplomatic and state immunity cannot shield representatives--but I take his point--of states parties. The same is not true of non-states parties, a matter raised by my noble friend Lord Goldsmith. We are required by virtue of international law obligations to give diplomatic and state immunities unless the state concerned has agreed to waive them. We hope that as many countries as possible will become states parties. If they do not, we are in the position that has already been accurately described.
Clause 23 was the subject of particular inquiry by my noble friend Lord Goldsmith and my noble and learned friend Lord Archer. That clause provides that the Secretary of State may direct that arrest and surrender proceedings be not taken against someone enjoying state or diplomatic immunity. However, I remind the House that he can do that only after
consulting the ICC and the state concerned. I should say as plainly as I can that the Government's clear policy is generally that all those indicted by the ICC should be brought to trial. The provision in Clause 23 is simply a prudent measure against a possibly uncertain future.I turn now to the remarks of the noble and learned Lord, Lord Lloyd of Berwick, for which my noble friend the Minister and I were extremely grateful. It is very valuable to have the view of someone who sat judicially in Pinochet's case. I believe that, post-Pinochet, the maps we formerly read have needed to be rolled up. This is, in part, one of the consequences of a changed world, which we are capable of improving.
In the context of the noble and learned Lord's remarks in regard to Senator Pinochet and the question put by my noble friend Lord Shore--I am dividing his questions into two--whether or not Chile had been a state party at the time that Senator Pinochet committed his alleged offences, he would have been triable domestically in Chile unless Chile was unwilling or unable to try him. If, as the noble Lord, Lord Kingsland, said, on the basis of complementarity Chile had been unwilling or unable to try him, then the International Criminal Court would have had jurisdiction. I have put that answer carefully, of course, reminding the House--as did my noble friend the Minister earlier--that this is not retrospective. I have therefore put the conditions around that answer in that way.
I was grateful for the support of the noble Baroness, Lady Kennedy. I am happy to be able to say that, as a fairly late signatory, Iran has now included itself.
I particularly welcome the strong support for the concept, as the noble Lord, Lord Moynihan described it. I simply do not know what the consequences of the protection Bill in the United States will be. I understand that there are strong, powerfully held views in the United States about the proposition that United States nationals should not be tried elsewhere. That is a political judgment for our friends in the United States to make. I echo, if I may, what my noble friend Lord Cocks of Hartcliffe said: we should not be too eager to castigate the United States. In many ways it is an open, generous-hearted, fine country. Not that we agree with it on everything, but at least we can disagree, I hope, in an agreeable and decent way.
The noble Lord, Lord Shore, then invited my particular response to the question of Article 8, an issue touched on by the noble Lord, Lord Blaker. I remember of course that the noble Lord, Lord Campbell of Alloway, also raised these questions. On pages 62 and 63 of the Bill, Article 8 contains descriptions of war crimes. They are purely descriptive of what international law presently regards as offences. We are bound by the Geneva conventions and the protocols we have signed. What one finds here have already been described and assented to by this country as being war crimes.
They are not as bald nor as brutal as they seem. The noble Lord, Lord Goldsmith, was quite right to point, for instance, to Article 8(2)(b)(iv). One has the
proportionality or the excessive argument put there. One has the necessity to prove intent. If one goes to the protocols--which I shall not because I do not have time to do so--there are many installations, devices, buildings and objects which are capable of military use and also capable of civilian benefit, such as electricity generators. One has to approach these matters proportionately, rationally and reasonably.
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