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The Chairman of Committees: My Lords, the legal adviser to the Joint Committee on Human Rights is

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Professor David Feldman, who is a full-time member of the staff of this House, shared with the House of Commons. As far as I know, the Joint Committee has not appointed any other adviser.

Lord Lester of Herne Hill: My Lords, is the Chairman of Committees aware that the committee, of which I am privileged to be a member, is very pleased that someone of Professor Feldman's quality has been appointed as legal adviser? He is outstanding.

On Question, Motion agreed to.

International Criminal Court Bill [H.L.]

3.32 p.m.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Baroness Scotland of Asthal.)

Lord Cocks of Hartcliffe: My Lords, will the Minister rebut an allegation that was made in the other place on 1st February during Business Questions by the Member for Islington, North, who is also a member of the Joint Committee on Human Rights mentioned by the noble Lord, Lord Lester, just now? Talking about this Bill, he asked the Lord President:

    "Does she accept that there is unnecessary delay in the House of Lords?"--[Official Report, Commons, 1/2/01; col. 455.]

Will the Minister confirm that that is untrue? Is it not unfair that we take so much groundless flak?

Baroness Scotland of Asthal: My Lords, I can certainly confirm that there has been no delay on the Bill. Any aspersion that has been cast in that regard is misplaced.

On Question, Motion agreed to.

House in Committee accordingly.


Lord Campbell of Alloway moved Amendment No. 1:

    Before Clause 1, insert the following new clause--


(" .--(1) This Act shall have effect subject to reservation on ratification of the ICC Statute by Her Majesty's Government that Article 8 do make provision to proscribe any form of slavery, the threat of such, or other humiliating and degrading treatment of Prisoners of War, and the selection and use of Prisoners of War as hostages.
(2) The form of such provision shall be as agreed by a two-thirds majority of members of the Assembly of State Parties.").

The noble Lord said: Subsection (1) of the amendment would oblige the Government to make a reservation on ratification of the statute about the provision of measures of protection and safeguard for

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prisoners of war. Subsection (2) would make the form of such a reservation a matter for the decision of members of the assembly of state parties.

As your Lordships may know, the ICC Statute will come into force when 60 states have ratified. As yet, only 27 have ratified, although well over 100 have signed, including the United Kingdom. A number of states that signed entered reservations about the proposed reform of the statute, a most notable and important example being the United States of America.

I disclosed my interest on Second Reading and set out the grounds for such a provision. There was no dissent or objection raised. I do not propose to indulge in tedious repetition. The debate is reported in the Official Report of 15th January and the material is available to your Lordships.

The amendment would not delay Royal Assent of the Bill or ratification by the United Kingdom. It would not amend the statute--it could not do so anyway. It would in no way obstruct the Government's commitment to the principle that the International Criminal Court should be set up or the implementation of our obligations under the statute. Under current procedure, members of the assembly of state parties could not give effect to such provision until about seven years had passed.

No doubt there will be many reservations on ratification concerning somewhat complex matters such as crimes of aggression, terrorist offences and jurisdiction in contest with national sovereignty. They will require definition. The amendment is relatively straightforward and simple. The situation on the protection of prisoners of war under the Geneva Conventions Act 1957 and the convention of 1949, set out on page 62 of the Bill under the first definition of war crimes, is manifestly unsatisfactory. That was broadly accepted by the House on Second Reading.

The amendment may commend itself to your Lordships in principle as a requisite measure for future protection of those taken prisoner as part of the baggage of war. I beg to move.

Lord Howell of Guildford: We all appreciate the concerns behind the amendment, which is based on my noble friend's acute and long-standing experience of the horrors of war. The more recent horrors of Saddam Hussein using prisoners of war as hostages and threatening to surround military targets with them also lie behind the amendment. I support that concern.

What is the Minister's general policy on reservations on ratification? Are we to make, as other countries have done, various declarations on the ratification status document covering a number of issues where we wish to interpret the Statute of Rome according to our own lights? And can she give an indication of what they would be? Obviously they will affect considerably the view which people take of this Bill and its effectiveness.

The Attorney-General (Lord Williams of Mostyn): I am grateful to the noble Lord, Lord Campbell of

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Alloway, for raising this question. From his earlier remarks both in the Chamber and to me outside it, I know that his concerns are based on his own distinguished service and honourable experience. I hope that I shall be able to reassure not only other Members of the Committee but the noble Lord himself that the amendment is not required for what I agree to be the legitimate and proper purpose that he seeks.

Following the Second World War, as the noble Lord mentioned, in 1949 the existing Geneva Convention on Prisoners of War was updated. The new convention introduced the notion of "grave breaches"; that is, offences against protected persons--in this case, prisoners of war--which would be subject to trial by any nation in the world. We incorporated those offences into our own domestic law as long ago as 1957 in the Geneva Conventions Act. As the Committee will have seen, they are again reflected in the Rome Statute in Article 8(2)(a).

Therefore, I believe that the noble Lord will find in that part of the statute, and therefore in Schedule 8 to this Bill, all that he wishes to achieve for the prosecution of offences against prisoners of war. Specifically included are wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, and the taking of hostages. I reaffirm that all those offences apply to offences committed against prisoners of war.

In addition, the conduct described in Article 8(2)(b) would also be criminal if committed against prisoners of war. Among those is Article 8(2)(b)(xxi), which concerns the committing of outrages upon personal dignity--in particular humiliating and degrading treatment.

As the noble Lord mentioned, during Second Reading he drew attention to the provisions of Article 8(2)(c). That applies only in non-international armed conflict where the concept of "prisoners of war" does not exist. However, the definition of those protected under that article is wide enough to include persons made prisoner or detained during those conflicts.

The particular question was raised, both in the terms of the amendment, which speaks of reservation, and in the question of the noble Lord, Lord Howell, about reservations generally. In respect of both those questions--one implied in the amendment and one specifically raised by the noble Lord, Lord Howell--I invite the Committee to look at Article 120 of the statute, which is quite short. It states that no reservations may be made to the statute. I hope that that is helpful.

However, we would expect to make a small number of interpretative statements on ratification of the Rome Statute. The purpose of those statements--I hope that this meets the point made by the noble Lord, Lord Howell--would be to express our understanding of certain provisions under Article 8 of the Rome Statute. Therefore, in answer to the brutal question, as it were, of reservations pure and simple, that point is

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dealt with in Article 120. With regard to interpretation, I hope that I have been able to satisfy the Committee.

Lord Campbell of Alloway: I thank the noble and learned Lord for his reply. It was a fairly detailed and complex reply on which I wish to reflect and have time for reflection. As at present advised, it does not cover certain of the matters--I shall not take time over them--with which I dealt at Second Reading. I have in mind one in particular--the threat of humiliating and degrading treatment--as well as some others.

I wonder whether the noble and learned Lord would be prepared to entertain discussions between now and the next stage of the Bill with a view to seeing whether, in any event, the Government might be prepared to give some form of satisfactory undertaking on this matter. Of course, such discussions would be without commitment. On that basis, in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Request for arrest and surrender]:

3.45 p.m.

Lord Howell of Guildford moved Amendment No. 2:

    Page 1, line 23, leave out ("shall") and insert ("may").

The noble Lord said: In moving this amendment, I shall refer also to the amendments grouped with it. As this is the first amendment to be moved from this side of the Chamber, perhaps the Committee will allow me to preface my remarks by making quite clear that, in dealing with the substantial number of amendments on the Marshalled List, we on this side welcome the aims of the Bill and are anxious to see it work effectively and efficiently and, indeed, to deal with the issues raised in the amendments as swiftly as we can.

We want to see the United States of America brought along in support of the Bill. However, from the very start our concerns, as raised in the amendments, including this one, are as follows. We should avoid a general criminalising of the use of force in international affairs; we should avoid unintended consequences, in particular that lesser offenders are brought to justice and the big offenders--the atrocity-mongers--escape; we should avoid using the legislation as a political tool; and there should be protection for our Armed Forces and all servants of the state, including, indeed, politicians of all parties, against vexatious prosecution. We shall return to all those matters, but I preface the moving of the amendment with those remarks.

This group of amendments deals with requests to the Secretary of State for the surrender and arrest of accused persons. Our amendments seek to allow the Secretary of State the option, for whatever reason he thinks fit, not to initiate the sending of documents to a judicial officer, thereby maintaining the autonomy of the United Kingdom in international matters. This precise amendment under Clause 2 starts from the

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point that the Secretary of State is accountable to Parliament. We believe that he should retain a residual discretion to refuse to activate a request for arrest and surrender. We believe that no harm will be done by that let-out.

I turn to the other amendments in the grouping. Amendment No. 4 gives the Secretary of State discretion in endorsing the warrant for execution in the United Kingdom where the request for arrest and surrender is accompanied by a warrant of arrest and the judicial officer is satisfied with it.

Amendment No. 6, which leaves out "shall" and inserts "may", obviously gives the appropriate judicial officer the discretion that arises from that change of wording. Amendment No. 7 simply seeks to ensure that any request as referred to in this statute and subsection shall be in the English language and that any request referred to in subsection (2) and in this statute shall be delivered to the Home Office and a second copy to the Attorney-General. This amendment will ensure that that is included in the statute simply for the avoidance of confusion. It is in that spirit of seeking reassurance that I tabled these first amendments. I beg to move.

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