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Lord Lester of Herne Hill: The noble Lord, Lord Lamont, is at least consistent. Earlier in the debate he expressed scepticism, if not something stronger, about the way in which our own House of Lords had dealt with the case of Senator Pinochet. I believe that he said that the Law Lords somehow had not acted in the judicial way that he would have wished. If he thinks that of our own judges, it is not surprising that he finds it appropriate to express doubts about the court not yet established.

If he is open to it, I believe I can provide him with some reassurance. If he reads the ICC statute, he will find a number of provisions that answer his points. For example, Article 40 guarantees judicial independence in a strong way. Article 41 deals with the disqualification of judges whose impartiality may be in doubt. Article 46 deals with the removal of judges for serious misconduct or a serious breach of duties under the statute. That will be further dealt with in the Rules of Procedure and Evidence. Article 47 deals with disciplinary measures against a judge or prosecutor and so on who commits less serious misconduct. So there you have a battery of safeguards, coupled with the other safeguards in regard to the need to act judicially in a real sense.

So far as concerns privileges and immunities, Article 48.1 requires the court to enjoy in the territory of each state party such privileges and immunities as are necessary for the fulfilment of its purposes. Just as our courts have immunities when exercising judicial functions subject to their removal by impeachment--and there is a similar provision here for impeachment--so all international organisations properly so called have privileges and immunities within the territories of the states which are members and supporters of those organisations. So there is nothing strange or unusual about a privilege and immunity clause.

Lord Lamont of Lerwick: The noble Lord says that it is nothing strange--it is. Perhaps he will give a rationale for it. Why should a head of state have no immunity and an organisation like the court have immunity? Is he aware that in countries such as New Zealand judges do not have immunity; judges can be prosecuted for offences or taking bribes? Why should we not have the highest standards for an international court?

Lord Lester of Herne Hill: Judges here may be prosecuted for criminal offences, just like anyone else. I am talking about immunity in respect of the exercise of their judicial functions and the importance of having independent tenure. The noble Lord asked me why international organisations have immunity. The

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reason is that they have international legal personality and they are, as a matter of customary and conventional international law, always protected in their international functions by immunities in the states in which they operate. The point I make simply is that that is true of the European Court of Human Rights, of the International Labour Organisation and of every international organisation that is recognised as being international.

So far as concerns funding, that is determined, as I understand it, by the assembly of states parties. I do not think that any of the points raised are new or give rise to any real concern.

Lord McCluskey: I wonder whether I am looking at the same statute as the noble Lord, Lord Lamont. The one that I am looking at talks about immunities for judges being immunities which are required to give effect to the statute. You do not have to commit genocide to give effect to the statute; you do not have to commit crimes against humanity or accept bribes to give effect to the statute. Accordingly, immunity is extremely narrowly defined. If one recognises that that is what this states and what the treaty and statute state, there is no problem at all.

Lord Williams of Mostyn: I am about to fulfil a lifetime's ambition. I am able to say, in respect of what the noble and learned Lord, Lord McCluskey said, that I have heard what he said, I agree with everything he said and I have nothing to add.

I do not think that there is anything to add to what the noble Lord, Lord Lester, said. I understand the questions put by the noble Lord, Lord Lamont. All the answers that I was going to give included going through Schedule 1, paragraph by paragraph. Those answers have already been given. I do not think that I can assist the Committee further, bearing in mind that the hour has now past 10.41 p.m.

Lord Lamont of Lerwick: Before the noble and learned Lord sits down, could he at least answer the questions about funding?

Lord Williams of Mostyn: Certainly. This will not come cheap. I believe that experience will demonstrate that the number of cases which have to go to the ICC will be relatively few. It will therefore not be possible to give even a general estimate of the cost to the United Kingdom of the ICC. Should we take prisoners at the ICC's request, the conventional figure at the moment is about 25,000 or 26,000 per head per year. I am trying to be as helpful as possible. Our contribution to the Yugoslav and Rwanda tribunals last year was about 5.7 million .

I should say in the context of the Yugoslav tribunal that I have visited it. Sometimes that is helpful. Two senior British prosecutors had been there for a long period of time on a very small remuneration, barely enough to live on. I was unable to find any criticism of the quality of the judges, or of the procedure. I thought it exceptionally fair and exceptionally careful, moderate and scrupulous.

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10.45 p.m.

Lord Lamont of Lerwick: My question related not merely to the total cost but to burden-sharing between different countries.

Lord Williams of Mostyn: The burden-sharing will be on a band agreed between the parties. Obviously, it will depend on how many states ratify the agreement. If large states such as the United States do not ratify, we shall not be able to look to them for a contribution.

The kind of figure I mentioned is quite large-- 5.7 million. But I wonder how proportionate that figure is in the context of the wrongs that we are hoping to prevent and put right. I believe that this country has a big enough heart to discharge those debts.

Lord Lamont of Lerwick: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howell of Guildford moved Amendment No. 137:

    Page 40, line 41, after ("shall,") insert ("unless the contrary is shown on the balance of probabilities,").

The noble Lord said: We conclude this Committee stage with an amendment of exquisite technicality and narrowness. It is so exquisite and so narrow that I may not even be able to present it in the precise form that I should like. It arises from the provision in paragraph 5 of Schedule 1, which states that,

    "An order, judgment, warrant or request of the ICC which purports ... to bear the seal of the ICC, or ... to be signed by a person in his capacity as a judge or officer of the ICC, shall ... be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person".

The amendment queries whether "without further proof" is adequate and suggests that a tighter test of authenticity would be justified. It introduces the concept that is no doubt familiar to lawyers, but not to me, of the "balance of probabilities". The amendment argues that the balance of probabilities test must be employed. So if the warrant looks less than genuine by 50 per cent, there must be a proper test of authenticity by the judges. The warrant should not merely be accepted on the hopeful assumption that it looks all right, therefore it should be all right.

This is a small matter, but it is part of the general structure of reassurance that we seek to build, not into the statute, which I see is cast in stone, but into our interpretation and handling of how the statute may become law in this land. I beg to move.

Baroness Scotland of Asthal: I hope that we can end the Committee stage on a happy note, with my being able to give great comfort to the noble Lord. It has been the case for the past 150 years that documents from foreign courts may be admitted in criteria in our courts if they purport to be duly signed as sealed, without any further proof being necessary. The various statutes on the matter, such as the Evidence Act 1851, contain a provision equivalent to that

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proposed in the amendment. In our view, the ICC should be treated like any other court outside a jurisdiction in this respect. I can tell the noble Lord that in the past 150 years even the lawyers seem to have been satisfied with the provision. Therefore, I hope that the noble Lord will withdraw the amendment.

Lord McCluskey: The point is that the provision enables one to avoid the need to prove the seal or the signature, but the document, judgment, order or

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warrant still has to be "of the ICC". So the problem does not arise, except in relation to the formality of proving the signature or the seal.

Lord Howell of Guildford: If the problem does not arise for lawyers, that is an assurance; and, indeed, if it has not arisen for the past 150 years, that is really an assurance. I am comforted. Therefore, I gladly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

House resumed: Bill reported with amendments.

        House adjourned at eight minutes before eleven o'clock.

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