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Lord Lester of Herne Hill: My Lords, I wonder whether the noble Lord is aware that discretion is built into the statute for the independent prosecutor to exercise his or her judgment in a matter. A truth and reconciliation commission investigating the sort of case my noble friend Lord Goodhart mentioned, properly investigating all the facts and acting in a completely different spirit from the type of case to which I was referring, would no doubt be taken into account by the prosecutor. It would be inconceivable to imagine a prosecution.

Lord Howell of Guildford: My Lords, I was aware of that. Again, we have what from one point of view appears to be a sensible amnesty and from another it may seem to be an intolerable brushing aside of terrible crimes committed and victims ignored, to use

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the reference of the noble Lord made. Those are the kinds of issues that may need to be argued. There may be an unforeseeable situation where a different view is taken initially by the prosecutor or by the pre-trial chamber from that held by a nation state that an amnesty is needed in order to move on from some dark difficulty. I do not know.

Lord Monson: My Lords, to reinforce the point that the noble Lord was making, would he agree that in 1943 Winston Churchill decided to pardon and not prosecute Italian generals who were guilty of grave war crimes in the Balkans? He did so because he considered that course to be the lesser of two evils and that it would help to speed up the conclusion of the war against Nazi Germany, which was the greater of the two evils.

Lord Howell of Guildford: My Lords, I am grateful for that fascinating history lesson. I suspect that history is littered with such instances and the future will be as well, even though we want to make it a better world than anything which existed 57 years ago in Europe. I shall be very interested to hear the noble Baroness's reply to my noble friend on this matter.

As regards the amendment relating to Northern Ireland, we have all said to each other umpteen times that this Bill is not retrospective and nor is the power of the court. But the Northern Ireland problem is not yet solved. The peace process is by no means in the bag. The concessions which may have to be made on both sides have by no means come to an end. There may be many difficult decisions ahead and some of them could clash with the apparent incompatibility and the requirements of the Bill. I look forward to hearing the observations of the Minister.

Baroness Scotland of Asthal: My Lords, I resist all three of the amendments. I shall deal with them in turn. As regards amnesties, the crimes which the ICC will prosecute are, as noble Lords know, some of the most serious imaginable for which amnesties would rarely be appropriate. The noble Lord, Lord Lester, has already said that the ICC prosecutor has a discretion not to institute a prosecution in the interests of justice. That may be appropriate where a fair and democratically supported amnesty has been proclaimed. The South African situation immediately springs to mind.

In negotiating the statute, we have constantly to strike a balance between upholding our own system, which we believe should stand up to any amount of challenge, and introducing huge gaps into the statute which could be used by dictators to avoid justice for their own people by introducing amnesties with no democratic support. We believe that we have got it right and that the principle of "complementarity" will allow us to take our own decisions in the context of our own well-respected judicial system.

The key point here is that the matter is for the ICC to determine. If the question of a domestic amnesty arose in respect of an individual whom the ICC wishes

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to investigate, the state concerned would no doubt take that up with the court at the point it was notified that an investigation was being considered. If there were to be a difference of will, it would promote reconciliation in war-torn societies by rightly placing responsibilities on individuals rather than on the communities.

I am sure that it is also of interest to the House to note that the Rome Statute provides that, if an investigation or prosecution would harm international peace and security, the UN Security Council will have the power under a Chapter VII resolution to request the ICC to defer action for an initial period of 12 months, which could be renewed. I hope that that is of some reassurance to the noble Lord and the House in relation to the substance of his amendment.

Perhaps I may touch on two other matters. The noble Lord again raised the position of my right honourable friend Mr Hain as regards commments he is alleged to have made in relation to Jonas Savimbi. I believe later he mentioned SANCO. I am surprised that the noble Lord should raise this issue for, I believe, the second time because my right honourable friend Peter Hain wrote to the noble Lord, Lord Lamont, on 24th August last year to set out his position in response to the comments made by the noble Lord that Mr Hain had called for immunity for Savimbi. In his letter Mr Hain stated that he had given no speeches calling for immunity from prosecution for Jonas Savimbi, as claimed. He made it clear in terms that,

    "I consider him to bear prime responsibility for the continued conflict in Angola and the suffering of hundreds of thousands of Angolans. Leaders like Savimbi are living examples of why support for the International Criminal Court is so strong".

He went on to say:

    "Our first priority is and should be to stop the killing in Angola. The best outcome would be a negotiated settlement, which would inevitably include UNITA. For the higher purpose of saving lives, it may be necessary to enter into careful negotiations with Savimbi in the first instance and a safe passage may be an issue here. But that would not amount to ignoring his crimes or offering immunity".

My honourable friend made it clear that no amnesty was being suggested.

8 p.m.

Lord Lamont of Lerwick: My Lords, I intervene because I do not wish to be accused of misrepresenting the Minister of State. I said that his comments were reported. I checked with the newspaper that reported the comments and it maintains that its report was accurate. When I wrote to Mr Hain a second time about the matter, he wrote back to me saying, "I did use the words that you quote". He confirmed that he had used them. The last part of the remarks that the noble Baroness read out was not a direct quotation.

Baroness Scotland of Asthal: My Lords, my honourable friend went on to say that unfortunately the newspapers did not quote all that he had said--they never do--because they did not report all of the comments that I have just read out. I am sure that the noble Lord agrees that that was made plain in the letters. I have both letters with me; if it helps the noble

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Lord to refresh his memory, I could read out all of them. I notice that I am the one wearing glasses; I do not know whether the noble Lord needs them to help him.

On the SANCO immunity, a difficult decision was made at a time when people were trying to bring to an end appalling violence. The amnesty that they gave at that stage did not relieve perpetrators of war crimes of their responsibilities under international law. Subsequent events indicate that the amnesties will not bring peace so long as those responsible for past crimes retain their evil ambitions and see the desire for peace as a sign of weakness. Justice places responsibility for crimes on individuals, not communities. If we really want reconciliation, it is important to deal in a fair and proper way with such matters.

I turn to Amendment No. 5, which the Government cannot accept. First, it would breach our obligations to the ICC. Secondly, it appears to give life-long immunity from prosecution to anyone who is released following the Good Friday agreement, whatever the crimes they may subsequently commit. That is not, I confess, an idea that we could ever countenance. Thirdly--I say this with the greatest respect--the amendment is utterly unnecessary. No ICC crimes have been committed in Northern Ireland and we sincerely hope that they never will be. However horrendous the individual terrorist atrocities have been in Northern Ireland, they are not war crimes as defined under international law. They would not therefore come under the jurisdiction of the ICC.

Lord Lamont of Lerwick: My Lords, will the Minister please explain why crimes committed in Northern Ireland would not come under the heading of genocide? The ICC statute states,

    "'genocide' means ... acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such ... Causing serious bodily or mental harm to members of the group".

Baroness Scotland of Asthal: My Lords, the mere recitation of that definition should dictate why the struggles and difficulties in Northern Ireland do not fall under it. It has never been suggested that the term could properly be applied to Northern Ireland; there has been a deal of agreement on that.

Lord Lamont of Lerwick: My Lords, why not?

Baroness Scotland of Asthal: My Lords, because sense usually prevails, which is appropriate.

Lord Lester of Herne Hill: My Lords, does the Minister agree that one answer to that question is that whatever monstrous acts of terrorism have been committed by either side in Northern Ireland, they are not directed towards the destruction of the Catholic or Protestant populations or their ethnic forebears on the Celtic or Gaelic sides? The suggestion is a sort of insult--I know that no insult was intended by the

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noble Lord, Lord Lamont--to the concept of genocide; the suggestion might devalue the concept, which is directed at, for example, the holocaust.

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