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Lord Monson: The noble and learned Lord said that, in his opinion, states should not have the right to cherry-pick, and I see what he is getting at. But earlier he said that states do have the right, although I cannot find it in the Bill--perhaps it appears somewhere else--to decide not to prosecute after investigation. Will he reconcile those two concepts?

Lord Williams of Mostyn: Frequently in my present occupation, police investigations are carried out and sometimes the evidential hurdle is not passed which is contained in the guidance to Crown Prosecution Service lawyers and on rare occasions it may be in the public interest not to prosecute and on other occasions the offence can be prosecuted only with my specific fiat or authority. So there are marginal cases where, even if the evidential hurdle is passed, then prosecutions would not be brought.

But my fundamental point remains this. I believe that we all agree that the international tribunal in Rwanda should take action against, allegedly, genocidal murder on a colossal scale--murder of

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hundreds of thousands of people--and that it is right to prosecute alleged war criminals from Yugoslavia. But one cannot then cherry-pick and say that because their skin is white or their nationality is British, they are not subject to the same rules of law.

Lord Kingsland: I am most grateful to the noble and learned Lord for drawing the attention of the Committee to Clause 5(4). The noble and learned Lord could be forgiven for not recalling that I have tabled an amendment to that clause. In view of what he said, I would encourage him to accept it because my amendment enables the Secretary of State himself to go to the ICC and challenge the admissibility of the issue of the warrant.

It is not clear on the face of the Bill that the Secretary of State would have the power to do that. I take it that it is implied by Clause 5(4) that the individual who is the subject of the warrant would be able to take that action but it is not stated in terms that the Secretary of State would equally be able to so act.

If the Minister were to agree that the Secretary of State could act in those circumstances, he would provide, if not the complete answer, then the answer to a very large extent to the observations made about the current amendment.

Lord Williams of Mostyn: Clause 5(4) as a concept is capable of meeting the questions which have been raised. I shall return to the specific amendment in due time because otherwise we shall lose our way.

My point remains that there is the opportunity for challenge to the jurisdictional basis of the ICC. That is provided in Clause 5(4). When that challenge is made, the competent court--namely, the court in this jurisdiction--may adjourn and no further judicial step is taken in this country about surrender until the admissibility of the case or the ICC's jurisdiction has been determined.

Lord Monson: I wonder whether I may trouble the noble and learned Lord again in the light of his last answer to me because I cannot see any other obvious part of the Bill on which I can raise this point.

Let us suppose that a country--not this country because we would never do such a thing--elsewhere in the world decides, "We will prosecute someone for a crime (in order to get the ICC off its back) but, when convicted, we shall pass a derisory sentence or even have the president of the republic grant a general amnesty to all prisoners", and so on and so forth. Would the ICC have the right to say to such a country, "That is not good enough. You have passed a derisory sentence and let this man out after only six months. We demand that you re-prosecute the individual or turn him over to us"?

Lord Lamont of Lerwick: I want to reinforce the point. I appreciate that the noble and learned Lord has said that the matter of amnesty was touched upon at Second Reading. Unfortunately I could not be present at Second Reading, for which I apologise. I do not

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want to make a Second Reading speech, although I am interested in the point raised by the noble Lord, Lord Monson. That is how the jurisdiction of the court may apply in relation to, for example, Northern Ireland, or to domestic reconciliation processes. Perhaps the noble and learned Lord could speak to that point briefly.

On the particular point raised by the noble Lord, Lord Monson, about a domestic court passing a derisory sentence, or one that a reasonable person may conclude was inadequate, I have seen an opinion expressed by an academic at Cornell University that the statutes of the court give it authority over how sentences are applied; for example, the ICC is permitted to overrule the decisions of national governments or national courts when sentences are too lenient, but not when they are too onerous. I have certainly seen that academic opinion expressed. I would be grateful if the noble and learned Lord could give the Committee his opinion on that.

Lord Williams of Mostyn: Part of the answer is found in Article 20 of the statute:

    "1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

    2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

    3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

    (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

    (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice".

I see that the noble Lord, Lord Lamont, is nodding. To put it crudely, the framers of the statute were not born yesterday. I readily recognise that in some jurisdictions--I hope not ours--cosmetic proceedings may have been taken, simply with a view to shielding, to take the citation from the statute.

I believe that Article 20 deals with these matters that I recognise as important. If one has a dispute in relation to the consequences of Article 20--domestic prosecutions or activities in the criminal justice system--and if there is a dispute about whether it is a shield or not, under Clause 5(4) one has the opportunity for that to be the subject of an adjournment domestically and an application to the ICC itself.

Lord Howell of Guildford: I am not surprised by the nature of the reply of the Attorney-General to these amendments. I do not suppose that he is surprised that I am not surprised! The purpose of this short debate has been to show the strength of the obligations from a higher jurisdiction that the Bill intentionally places upon us. The noble Lord, Lord Lester, has made it

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quite clear that that is the intention. They are strong obligations and they place constrictions that have been emphasised in this short debate. In view of the comments that have been made and the observations of the noble and learned Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Hylton moved Amendment No. 3:

    Page 1, line 24, at end insert--

("(1A) The Secretary of State shall not transmit a request under subsection (1) if 40 years or more have elapsed since the date of the alleged offence.").

The noble Lord said: I have tabled Amendment No. 3 in the interests of achieving fair trials and preventing miscarriages of justice. In its effect this is a long-term amendment. I do not expect to be around 40 years after the International Criminal Court has come into active being. However, I have come into contact with too many victims of miscarriages of justice, so I believe that everything possible should be done to prevent such things happening.

As a layman, it seems to me that it is most unlikely that fair trials can be mounted 40 years after the event. Key witnesses will have died, often personal appearances will have changed almost out of recognition and memories will have become clouded or highly selective. In my view, some kind of statutory limitation is necessary beyond which it is not possible to bring charges. I admit that 40 years is an arbitrary figure and it may be that a shorter period would be preferable. I understand that Belgium has a limitation of 30 years even for the most serious crimes.

It is clear that in discussing the present Bill we cannot amend the statute of the International Criminal Court. However, I regret the rigidity of Article 29 and the possibly vindictive attitude of some NGOs that have supported it. The only options open to us are either to enter reservations to our ratification, as has been suggested by the noble Lord, Lord Campbell of Alloway, or to restrict the ability of the Secretary of State to act on request, as in my amendment. Therefore, this amendment has a probing character. I look forward to hearing the reply from the Government. I beg to move.

Lord Monson: The noble Lord, Lord Hylton, was good enough to support me on an earlier amendment and I have pleasure in reciprocating by supporting this amendment, not only for the reasons that he has eloquently advanced, but also for other reasons. As I argued at the time of the War Crimes Bill, what on earth is the point of prosecuting people who are in their 70s or 80s--those in their 60s may be a borderline matter--for crimes that they may have committed when teenagers, caught up in the transient political passions of the moment? However serious those

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crimes, those people may have led perfectly blameless lives in the intervening 50 or 60 years. What is the point of prosecuting them?

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