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Earl Attlee: Does the noble Lord, Lord Lester of Herne Hill, agree that if a warrant arrives it is most likely to be directed at a member or former member of Her Majesty's Armed Forces? Such a situation could be extremely damaging for morale in the Armed Forces, and therefore Parliament should know about the difficulties.
Lord Lester of Herne Hill: Of course, I realise that it is possible--one hopes that it will never happen--that members of the Armed Forces may be guilty of crimes against humanity, of war crimes or of genocide. In that case, they should be treated in the same way as the perpetrators of that type of crime in any other country. As to whether such a case should be reported to Parliament, I have no doubt at all that in a country with a vigorous press the fact that the request has been made will be noted. I also have no doubt that Members
Baroness Scotland of Asthal: I want to reassure noble Lords opposite and all Members of the Committee in relation to this matter. When appropriate, matters relating to requests from the ICC will be brought to the attention of Parliament in the usual manner without a requirement formally to lay a report. That has been the practice on many occasions and, indeed, was the approach taken in the Pinochet case, when the Home Secretary's reasons for his decision were brought to the attention of another place.
The ICC would have to consider any challenge to its jurisdiction at a preliminary admissibility hearing in accordance with Articles 17 and 19. Members of the Committee will know that Article 17 provides that a case should be investigated by a state which has jurisdiction over it where the state has decided not to prosecute the person concerned unless the decision has altered from the unwillingness or inability of the state genuinely to prosecute. Article 19 provides that the court shall satisfy itself that it has jurisdiction in any case brought before it. The court may, on its own motion, determine the admissibility of a case in accordance with Article 17.
We do not believe that a problem will arise in that respect. In the light of our assurance that the matter would be brought before Parliament in the usual way, we hope that noble Lords will agree to withdraw their amendment.
Lord Howell of Guildford: As I understand it, the noble Baroness is saying that these matters will come before Parliament but that one does not require further formality, procedures or definition of procedures in codifying the way that they will come forward because come forward they will. I believe that that is what she is saying. That I understand and accept. However, I remain a little puzzled. My mind is far less clear about the nature of the procedure than are the clear minds of those who, like the noble Lord, Lord Lester, are obviously reassured by the situation. Perhaps this does not arise but let us suppose that the ICC says, "We have had notification" perhaps from some other country or a former enemy--I know that this is not retrospective--"that back in Bosnia, something really dreadful happened and some atrocities were committed which we, the recipients, believe involved brutality and war crimes which should be brought to justice". That comes from the ICC to the Secretary of State. The Secretary of State might say, "We have looked into this. We have concluded that the matter should not be pursued because the military personnel concerned were under intense pressure. They bombarded the wrong village and blew up an alleged ammunition dump, which turned out to be full of civilians. We have looked into that and we do not believe that any further blame can be apportioned". Or the Secretary of State might say, "Yes, we have proceeded to a court martial and those involved were acquitted".
I think that I understand that in the second instance that is enough and the ICC will go away; but in the first instance, what is the nature of the consultation? Is it correct that the ICC, if told by the Secretary of State that the matter will not be pursued nationally--which, in another language, one could say was an indication that the nation state was unwilling, not unable, to proceed with the matter--will then have to go away? If it is, does not that somewhat weaken the impulses and momentum which are meant to be behind the Bill, as has been put so eloquently by the noble and learned Lord, Lord Archer, and the noble Lord, Lord Goldsmith?
I should like to be told that that analysis is wrong, that there is not that defence by the Secretary of State, and that the investigation could proceed. Before we finish Committee stage it is important to get absolutely clear and on the record the safeguards or limitations which the Secretary of State--or, in any other country trying to pass similar legislation to ours, a senior minister, Minister of Justice, or whatever--can deploy to prevent an investigation going ahead. I repeat that that applies in particular, obviously, to the armed services and the inevitably violent situations in which they have to conduct their difficult business. I should like the Minister to address that point before we go further.
Lord Goldsmith: The noble Lord referred to me as one of those who had been happy about the Bill and anxious that it should go forward. Perhaps I may say, before the Minister replies, so that she can indicate whether this is right, that the answer to his question is to be found in Article 17.1(b). If the Secretary of State or whoever it is says that the case has been investigated and a decision has been taken not to prosecute, the case will be inadmissible so far as concerns the ICC, unless the ICC takes the view that that decision resulted from the unwillingness or inability of the state genuinely to prosecute. In other words, it is another example in which the ICC does not step in where a country is able and willing genuinely to prosecute and to investigate, but will do so if it is not. That is my understanding. My noble friend will confirm or say otherwise on that point. I hope that answers the question.
Baroness Scotland of Asthal: I can confirm that what the noble Lord, Lord Goldsmith, says is right. Earlier I read out Article 17.1(b). Perhaps I may assist noble Lords. The articles which perhaps help most start with Article 5.4, there are then Articles 17, 18 and 19. In addition to those three articles--I am happy to go through them with a little care if Members of the Committee would like--full procedures are provided for in relation to admissibility and the challenges before the ICC in the rules of procedure at Articles 51 to 62. The scheme is clear. The noble Lord, Lord
I ask Members of the Committee to look also at Article 18.2, which provides for more specific provision, and then at Article 19. The issue appears to be comprehensively covered in relation to those matters. I am sure that in close scrutiny of those parts of the statute the noble Lord will find the reassurance he seeks.
Lord Howell of Guildford: I thank the Minister for that answer. I also thank the noble Lord, Lord Goldsmith, for his intervention, which cast a beam of light. But his light falls on what I am afraid is still a grey area. The questions that hang in the air are: what is unwilling; who decides; and by what public or private consultation is it established that the state believes it is not a sensible matter to pursue or is unwilling? At what level inside the office of the prosecutors, the pre-trial chambers and all the other apparatus of the Bill is that decided?
Lord Howell of Guildford: I am happy to receive that invitation. Having done the scrutinising I shall do it again, but I am still uneasy about the subjectivity of the decisions and the need for the Parliament of this nation to be fully apprised of the nature of any disputes and exchanges which may arise over an area where there is not an objective, a perfect solution, no matter how many times one reads the detailed articles of the statute. That is in the nature of the thing because we are dealing with matters which are associated with judgments which can be subjective and are not always objective.