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Lord Stewartby: I want to add the briefest of footnotes to what my noble friend Lord Hurd has said. The dilemma between peace and justice has arisen, and continues to arise, in Northern Ireland, as my noble friend knows--probably better than I do. It is with us in many circumstances and is likely to continue to be so. Such dilemmas are inherent in these situations before they can be resolved.
Lord Howell of Guildford: This debate on clause stand part has predictably expanded into a debate about one of the most important dilemmas in the Bill. The issue has been rightly raised, as it has been before and will be again. I shall certainly raise it at Report stage. The issue is about the danger of confusing matters of politics with matters of law, and the resulting confusion. In answer to the interesting excursion into 17th century history of my noble friend Lord Onslow, I recall that some of the regicides were brought to justice, although I am sure that the balance and reconciliation that my noble friend called for were also present, as well as a bit of shrewd politics.
The debate and the earlier discussion on the amendment relating to citizens of states parties highlights that there is something of a major loophole in the structure of the Bill. It is a loophole through which our country may not seek to leap but through which other countries can be imagined leaping only too eagerly. At Report stage we shall have to examine the matter much more closely to be satisfied that, in the light of the broad aim of having a better means of catching international monsters and perpetrators of atrocities, we have the right legislation on our statute book to achieve that. There seems to be a doubt over the matter at the moment.
Lord Williams of Mostyn: I have to remind myself that in the interests of economy we are in Committee rather than having a Second Reading debate. I know that the noble Lord, Lord Howell, has recognised that. I shall deal with a few of the matters because I know that Members of the Committee regard them as important.
What we are doing through the Bill is seeing whether, mechanically, we are producing appropriate legislation to give effect to that statute. I take the point about high state policy. It is true, as the noble Lord, Lord Avebury, said, that many of the illustrations given are to be met with the proposition, which he put, that this is not retrospective. It is equally true that one can extrapolate that type of example for the future, as did the noble Lords, Lord Lamont and Lord Hurd. In answer to the general questions of the noble Lord, Lord Lamont, I would say that we do not have a perfect system whereby the mighty are brought to justice for their wicked cruelties, though we do have systems of justice that punish individuals. That is the philosophical step that we are engaged on.
It is true, I dare say, that in the future we will not find all experience of the statute, when ratified into law, perfect on every occasion. The stance that we adopt--I hope that the Opposition will adopt the same stance--is that this is a distinct improvement on what presently is to be found. It is intended to deter for the future. That point, which I endorse, was made by the noble Lord, Lord Avebury. It is intended to say to those who are powerful people, sometimes in extremely powerful countries--I take the point made by the noble Lord, Lord Lamont--that they will not necessarily be safeguarded for ever. The noble Lord mentioned the People's Republic of China. It is a matter for it to decide whether to sign and ratify. It is a matter for the state of Israel to decide whether to sign; and if it does, whether it wishes then to ratify. But, having taken those two steps with all due deliberation, none of them should think that their subsequent leaders or present leaders for subsequent offences are liable to go unpunished.
That is a significant step forward. On this side of the Committee and in other parts of the Committee we rejoice in it. We do not pretend that it will be simple. But once upon a time--I am sorry to be as historical as the noble Earl, Lord Onslow--the barons were not tried by juries; and once upon a time the clergy were not tried by juries. I am sorry that the noble Lord, Lord Howell, corrected the noble Earl, Lord Onslow, about the regicide. I frequently take visitors to see the death warrant and have noticed that many of the signatories were indeed Welsh. If it is said that after the restoration all was sweetness and light, I must send a postcard to the Duke of Monmouth.
Lord Williams of Mostyn: I said "after the restoration". In the Onslow saga I suppose the most definitive argument is that the noble Earl is still the possessor of land and therefore we should do nothing that might interfere with his peaceful enjoyment of it.
There is no ducking this question. The noble Lord, Lord Lamont, was right to raise it and the noble Lord, Lord Hurd, was right to endorse it. We recognise the difficulties but we believe that this is the way forward. It is a step of high policy. At the moment we are engaged in seeing to the difficulties and intricacies of putting that decision into legislation. In answer to the noble Earl, Lord Attlee, it would not be necessary to ask for a waiver when credentials were delivered. It would be a matter for subsequent investigation.
Contrary to my own self-instruction, I have spent a little time on Second Reading matters as I thought it was appropriate to do so. I hope that the noble Lord, Lord Lamont, will not insist on his opposition to Clause 23 standing part of the Bill.
Lord Lamont of Lerwick: Perhaps I may ask one question about Clause 24, which introduces Schedule 2. How will the provision apply to United States servicemen? We have already had a discussion about how the Bill affects diplomatic immunity in respect of non-state parties. Can the noble and learned Lord confirm that the effect of the Bill will be that even though the United States does not ratify the court, the servicemen of the United States could still be arrested and tried by the court if found on some third party territory? Will he confirm that they could be arrested and could be put on trial before the International Criminal Court? Is that not one of the major concerns of the US Administration and one of the reasons why the court is unlikely to be supported in the end by the United States?
Lord Williams of Mostyn: I shall need to have precise details about the circumstances being posited by the noble Lord. At the moment individual servicemen are liable if they commit offences in foreign territories. That is the present state of the law. There have been notorious prosecutions in that regard. I really do not know what the ultimate attitude of the United States Government will be. All I know is what the noble Lord knows, which is that the former president signed. It is a matter for the US Congress to ratify.
Lord Lamont of Lerwick: I am sure that the noble and learned Lord would wish to make it clear to the Committee that even President Clinton, who signed the statute in his last days when he was doing a good many other controversial things, thought that the court needed to be amended to safeguard American personnel--and without that it could not be ratified.
Lord Williams of Mostyn: As I have said on earlier occasions, the statute is not capable of being amended in the way suggested by the noble Lord. My understanding of the United States constitution--the
Lord Avebury: Perhaps I may try to assist the noble Lord, Lord Lamont, by referring him to Article 17.1(b), under which a case may be ruled inadmissible if it has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned. In the circumstances referred to by the noble Lord where a United States serviceman is accused of some offence in a third jurisdiction--a future Somalia, as it were--the military authorities of the United States would investigate any allegations that crimes had been committed by their servicemen. If they found that there was a case to answer, they would prosecute the servicemen by means of their military courts. If they decided that there was not sufficient evidence to justify a prosecution, that would equally be grounds for saying that the case was inadmissible in proceedings before the International Criminal Court. They would then notify the International Criminal Court that they had examined the allegations against the servicemen, had found that there were not sufficient grounds for prosecution and had not gone ahead and were therefore requesting that the court treat the case as being inadmissible in its jurisdiction.
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