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Lord Goldsmith: My Lords, I thought that I would keep quiet on this amendment but the noble, Lord Howell, tempts me by his reference to a point which I do, and would, make. It is not so much that because we do something everyone else will do something. I do not take that view. But if we were to appear to say that the United Kingdom thinks that justice is optional but we can decide whether or not we think that someone should be prosecuted, that gives an excuse to so many others to say, "We shall protect our friends and only respond to the international court when it concerns people we do not like". I do not think that sentiment is idealist; I think that it is a valid point.

I share the views which the noble Lord, Lord Lester of Herne Hill, has expressed. There is a matter I do not understand which I should very much like to have explained. The provision states that if we receive a request for arrest and surrender, we shall take steps immediately to arrest. How can the United Kingdom ratify the statute, which includes a mandatory obligation under Article 59, at the same time as retaining the right not to comply with it? It is not a

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question of changing words in the statute. It is not possible to ratify the statute unless we accept that we are assuming an international obligation--and that means that we must assume it.

Baroness Scotland of Asthal: My Lords, I respectfully agree with the comments of the noble Lord, Lord Lester, and my noble friend Lord Goldsmith. I shall not tire the House by repeating everything that was said by my noble and learned friend the Attorney-General when we discussed this matter in Committee. The noble Lord, Lord Howell, is right: we seek compliance with the statute. The ICC Bill is designed to enable the United Kingdom to ratify the Rome Statute of the International Criminal Court. As a number of noble Lords have said, that statute makes it clear that state parties are expected to comply with requests from the ICC for arrest and surrender.

It is important to note that Article 89 sets out that state parties shall, in accordance with the provisions of this part and the procedure under their national law, comply with requests for arrest and surrender. Clause 2 of the Bill sets out the procedure to be followed by the Secretary of State and the appropriate judicial officer when a request is received from the ICC for arrest and surrender of a person alleged to have committed an ICC crime or to have been convicted by the ICC. The clause is designed to enable us to meet our obligations under Article 89 of the statute.

Noble Lords suggest that the Bill should be amended. By doing so, that process of dealing with an ICC request is subjected to a further step which could delay or even frustrate the legitimate surrender of the persons to the ICC or the state of the enforcement. The Government say that the introduction of a discretion is not appropriate at this stage.

In the light of those comments--I do not repeat all that was said on the last occasion; all noble Lords are present--I hope that the noble Lord will feel able to withdraw the amendment.

Lord Howell of Guildford: My Lords, the Government's answer is the one to be expected if the objective is to stick to the letter of the statute. I shall refer later to the point that other countries are able to carry forward the task without sticking to the letter of the statute. But if that is the Government's intention, clearly these amendments were doomed to be rejected.

However, there was a purpose behind the amendments. It was to establish beyond peradventure--I am not sure that it was entirely clear in Committee--who has the final word. When it comes to the admissibility of a case, and the to-ing and fro-ing of appeals and so on, we now know that in the end it is the court that shall satisfy itself that it has jurisdiction in any case brought before it. On its own motion, the court may determine the admissibility of a case in accordance with Article 17.

That is the clear view. As one eminent British lawyer put it the other day, that means that in theory we have to be prepared to have our soldiers tried by the

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International Criminal Court. This is a sobering clarification. It reinforces my belief that while upholding many of the noble principles behind this project, we must seek at every point to safeguard our own capacity to be a competent player on the international scene by ensuring that our Armed Forces and Crown personnel are protected from new risks. It is not protection from the law if they commit war crimes but protection from new and sometimes vexatious and unpredictable risks.

In the light of what I have said and the Minister's remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Lamont of Lerwick moved Amendment No. 4:

    Page 1, line 24, at end insert--

("( ) The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country.").

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 5 and 6 which stand in my name. Amendment No. 4 deals with amnesties; Amendment No. 5 deals with Northern Ireland; and Amendment No. 6 deals with the jurisdiction of the court as it applies to countries that have not ratified the statute of the ICC.

On amnesties, I accept the good intentions underlying the Bill. However, it is not sufficient to continue to underline the good intentions. It is necessary to examine the consequences. We are familiar with the doctrine of the law of unintended consequences: legislation often has consequences that we do not intend. I believe that the inflexible application of international law in certain areas will make conflict and abuses of human rights more likely.

Amendment No. 4 refers to the treatment of amnesties and states:

    "The Secretary of State shall not transmit the request if the charges brought against the person relate to an offence alleged to have been committed in a country whose democratically elected Government had, at the time of the arrest, agreed to an amnesty for all those who might otherwise be charged with ICC crimes during the period covered by the amnesty, and where the offence was committed in that country".

Many countries--in Africa or South America--have had internal conflicts where they have come to their own domestic agreements about the past. It has happened in South Africa with the Truth and Reconciliation Commission. The dilemma was well illustrated by recent events in Sierra Leone. The British Government brought pressure for the inclusion within the Sierra Leone Government of a faction which had been involved in what would be agreed generally to be crimes of appalling barbarism--torture; crimes against humanity; and amputating people. When those crimes ceased, those people became potentially liable to legal charges. But the dilemma was well illustrated by the changing attitude of the British

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Government. They found themselves accommodating people who had done terrible things because they thought that that was the way to peace in Sierra Leone.

On another occasion I gave an example of what the former Minister of State at the Foreign Office was reported to have said in relation to Angola. In the electronic Daily Telegraph he was reported to have held out the offer of safe conduct and amnesty for Jonas Savimbi. The same Minister of State has been an extremely strong supporter of the ICC. But according to the press he was saying that a particular individual should be given amnesty because that was the way to end conflict.

This is the point which has concerned me and where I believe that the International Criminal Court could do harm. The ICC cannot stop a civil war; it cannot stop a terrorist struggle; it cannot remove a tyrant from power. But if some form of peace is negotiated locally involving an amnesty for past offences, the ICC stands ready to nullify that agreement by launching its own prosecutions. Many countries in Eastern Europe, Southern Africa or South America that have made a transition to democracy in the past decade have made provision for such amnesties. It will be left to an international civil servant or an international court to decide when and to what extent to ignore such local peace conditions.

The local equivalent of an Interior Minister or a Home Secretary might offer a pardon, believing that it was in the best interests of his country, even if it did not accord with strict legal justice. As I understand it, the ICC prosecutor is not authorised to decide on any basis other than strict legal justice, yet he does not have the enforcement power to deliver legal justice. That results in the rigidity of untempered law without the strength of law in a sovereign state. The ICC prosecutor cannot invoke political considerations openly, because he has no accountability to an elected parliament or president. He will depend on extraordinarily politicised private advocacy groups for political support.

I have raised this issue before. I have asked the Attorney-General several times how an amnesty could be treated. In Committee, he answered:

    "The noble Lord returned to the question of amnesty. These are crimes of the gravest kind. It is extremely unlikely that an amnesty could legitimately be given".

That last sentence is the most important one. However, he went on, slightly unclearly:

    "But the answer to the question is that the ICC prosecutor has discretion not to institute a prosecution in the interests of justice. That might be appropriate where a fair and democratically supported amnesty had been proclaimed, but not where it was a purely bogus or cosmetic amnesty for illegitimate purposes".--[Official Report, 8/2/01; col. 1288.]

I interpreted the Attorney-General's reference to "justice" in a strict legal sense and took that answer to mean that it was extremely unlikely that a democratically elected Government could legitimately issue an amnesty within a country to excuse or forgive past crimes and undertake a process of reconciliation.

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That is my greatest reservation about the new International Criminal Court. The inflexible application of law is an obstacle to reconciliation. Such an approach or doctrine leads to the idea of unconditional surrender or fighting to the last man. One of the war crimes listed in the statutes of the court is declaring that no quarter will be given. I understand why that is listed as a war crime, but that attitude will be encouraged if the court is not allowed to recognise amnesties within countries. My amendment specifies that there should be a democratically elected government--not a continuing dictatorship--and that the alleged crimes should be internal to that country. The court could do enormous harm by interfering with such processes.

Amendment No. 5 would apply that logic to Northern Ireland, because the situation there illustrates that dilemma. The Government have put strict legal justice aside in the pursuit of a political settlement. No doubt the Minister will tell me that in some way the International Criminal Court is irrelevant to Northern Ireland, but my point is logical and correct. If we are prepared to have an amnesty in Northern Ireland and believe that no one should interfere with that from outside, why do we think that it is right for the International Criminal Court to interfere in other countries that have decided to put aside strict legal justice and make a political settlement to advance peace and reconciliation? That is an important point.

A national criminal justice system always provides a safety valve--a recourse to a pardon or an amnesty issued by political Ministers to stay the effect of a prosecution in the courts. There is no provision for that in the ICC.

Amendment No. 6 provides that the Secretary of State shall not transmit the request if the person alleged to have committed an ICC crime is a citizen of a country that has not ratified the statute of the ICC. One of the most contentious points is the extension of the jurisdiction of the ICC to countries that have not ratified the statute. That is one of the United States Government's reservations. They are fearful even now that the court will be able to put American servicemen on trial. That is particularly disquieting some people in that country.

The Rome Statute extends the court's jurisdiction not only over nationals of states that are parties to the statute, but over nationals of non-party states when they are charged with aggression or war crimes against nationals of states that are party. That is bad enough, because it effectively extends the court's authority over countries that do not consent to it. That is a novel concept in international law, although there would be some protection for non-party states if their questionable military action involved other non-party states.

I have an opinion from a professor of government at Cornell University that under Article 12.3, when a state seeks prosecution against officials of another state, even when the charging state is not a party and will not submit to prosecutions of its own officials, it

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can still bring prosecutions against non-party states. In addition to waiving traditional norms of consent, the Rome Statute also appears to waive traditional norms of reciprocity, making it easier for the prosecutor to play politics against unpopular states.

I very much hope for a clear response from the Minister on those three amendments, particularly on the amnesty in Northern Ireland. I have raised the issue on several occasions and have not yet had a clear reply.

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