Clause 23 - Provisions as to state or diplomatic immunity
International Criminal Court Bill [Lords]
11:00 am
Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)
I want to raise again matters that were raised in another place by my noble Friend Lord Avebury, who was supported by Lord Lester of Herne Hill. The debate will allow the Government to reconsider an important issue.
As it stands, the clause affords the Minister the discretion to refuse delivery in certain cases. That approach is too cautious. It allows a discretion to the Minister that it would be wiser not to allow. The clause leaves diplomatic immunity intact for non-state parties unless a waiver is obtained by or from the ICC. Clause 23(4) leaves it to the Minister to decide to whom immunity should attach in relation to non-state and state parties alike. Once again, that might leave the Minister open to considerable political pressure and prevent the United Kingdom from co-operating effectively with the ICC.
In another place, the Attorney-General made a distinction between discretion in relation to state parties, to which subsection (1) refers, and non-state parties, to which subsection (2) refers. The justification for that distinction is hard to see. My noble Friend Lord Avebury pointed out that it was wrong for the Secretary of State to have the discretion in relation to non-state parties because of the sequence of events as a result of there being a dispute. The Attorney-General reaffirmed that there would always be consultation between the Secretary of State and the ICC and between the Secretary of State and a non-state party to ascertain, first, that no waiver had been issued and, secondly, that the person had the immunity that he claimed to have had.
The Secretary of State would want to exercise such discretion if he disagreed with the court about whether the accused had made out a case that he was a member of a non-state party and had the immunity that he claimed to have had. All NGOs that have examined that point have told the Government that it should be a matter for the ICC in accordance with the statute of Rome. The Attorney-General said that he thought that, in certain exceptional cases, subsection (4) could be necessary and that he was standing firm on the non-state parties. While there may be circumstances in which discretion may seem desirable on the part of the Executive, it is unnecessary and undesirable that the Secretary of State should be subject to political pressure if he were to decide in which particular exceptional circumstances subsection (4) applies.
My amendment is based on articles 66 and 120 of the New Zealand statute, which provide that when the Minister is concerned about the clash of the international obligations of New Zealand including immunities, he can consult the ICC to ask whether it wishes to proceed with the request. Such a consultation procedure would remove the Government's veto, but would allow the Secretary of State to raise his concerns about either state parties or non-state parties and to ask whether the court considers that an effective waiver has been issued and whether it properly applies to the individual concerned.
Let us suppose that there is a dispute about the effective Government of a state and the individual argues that the party that has issued the waiver and accepted the jurisdiction of the court does not have the necessary authority to do so. It seems highly unlikely that the ICC would ask us to set aside our international obligations in relation to state or diplomatic immunities, except when the state concerned has accepted its ability to do so. I understand that to be the purpose of article 98 of the Rome statute, and we should trust the ICC, when it is established, in respect of that statute.
If there were a conflict between the judgment of the Government and that of the ICC in such a matter, this country would be under an obligation to abide by the statute and to give the ICC priority. The amendment would not simply delete subsection (4), but would provide for consultation to eliminate such a conflict. In most circumstances, that would be the natural consequence of such a referral.