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 beg to move amendment No. 41, in page 14, line 17, leave out subsection (4) and insert—
`( ) Where, in a particular case, the ICC has not made a final determination as to whether Article 98 of the Statute applies to a request, the Secretary of State may postpone his consideration of the request and consult with the ICC; and if the ICC advises that it has considered Article 98 and that it intends to proceed with the request, the Secretary of State must continue to deal with the request under this Part.'.
Mr Frank Cook (Stockton North, Labour)
With this it will be convenient to take amendment No. 52, in page 14, line 17, leave out subsection (4).
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.
Mr Crispin Blunt (Reigate, Conservative)
It is a pleasure to follow the right hon. Gentleman. I am slightly at a loss about the effect of his amendment and I am not sure that it entirely distinguishes between state and non-state parties. My amendment would delete subsection (4), the reason for which I hope is crystal clear. Will the Solicitor-General, if he is replying to this part of the debate, explain the consequences of amendment No. 52? A distinction will have to be made between state and non-state parties to the agreement. I am happy to come back on Report and table another amendment making that distinction, which would leave subsection (4) as it is but for the removal of ``(1) or'' in line 19. The subsection would then refer to non-state parties, as subsection (1) refers to state parties.
The importance of the issue cannot be understated, as it goes to the heart of the statute itself. Article 27 is absolutely explicit. It states:
``This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence . . . Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.''
The article could not be more explicit. The whole purpose of the ICC is to bring to justice the leaders of countries who order the crimes on which the court will rule.
Will the Solicitor-General explain part of article 98, which to a small extent seems to qualify the absolute position taken in article 27? Later, I hope that we may have a discussion about universal jurisdiction and whether it is right for the United Kingdom, if it is a party to the words of article 27 and in the preamble to the statute, to try not only our own nationals when they fall within this jurisdiction but nationals of other countries for the heinous crimes laid out in articles 5 to 8 of the statute. We will have that discussion later, and ask whether the measures should apply to non-state parties as well as state parties, who are then within the scope of British law and within the United Kingdom.
Although article 27 is explicit, article 98.1 adds the point that countries that have not ratified the treaty and are therefore non-state parties will clearly have different international obligations with state parties. As I understand it, article 98.1 simply states that a non-state party to the agreement or a third state can properly expect the immunity of its diplomats and Heads of Government in dealing with a state party to be respected, as they are not a party to the ICC. Article 98.1 seems to give that protection to the diplomats and representatives of non-state parties. The Government clearly have a proper case to make in that regard, that the ICC and the statute and the international law that has been created to establish it, cannot be seen to override previous international law, not least that relating to immunity.
It is clear, however, that states that ratify the statute accept article 27 and, therefore, accept that immunity will not apply to their own people. How, then, can the Solicitor-General possibly defend subsection (4)? The subsection explicitly gives discretion to the Government by stating:
``The Secretary of State may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings . . . under this Part which, but for subsection (1) . . . would be prevented by state or diplomatic immunity''.
Subsection 1 states:
``Any state or diplomatic immunity attached to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this Part in relation to that person.''
That is clear. In subsection (4), the Government are giving themselves the discretion to let off a diplomat, Head of Government or any representative of a party to the statute when faced by an ICC warrant for such a person's arrest. The Government cannot properly defend that position. In previous debates, the Government have resisted giving themselves discretion. They have resisted changing the word ``shall'' to ``may'', and they even resisted the proposal that Parliament should hold an inquiry into proceedings if there is a dispute with the ICC. The Government have resisted a public interest test about proceedings, and now they say that they will give themselves the discretion to let off diplomatic representatives or Heads of Government of countries that are party to the agreement.
Later, we shall discuss universal jurisdiction. I contend that subsection (4) can be dispensed with if the ICC is to be supported in the terms that the Government have put forward in signing up to the statute. If we in the United Kingdom are on the receiving end of a warrant from the ICC to surrender somebody who has been accused of crimes, why should the United Kingdom intervene? There is a case to be made for that, and I would like the Government to make that case when they say that my amendment, as drafted, would not be correct.
We must examine the Government's position, as set out in the explanatory notes, when we consider the matter, and how the Government have moved under pressure from the NGOs to which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) referred. In the initial consultation about the ICC there was no mention of diplomatic immunity. When that was pointed out to the then Minister, the hon. Member for Neath (Mr. Hain), he was shocked that the Bill would drive a coach and horses through the ICC because it would not deal with the matter of diplomatic immunity. Following that consultation, diplomatic immunity is in the Bill.
To be fair to the Government, the explanatory notes to clause 23 present their understanding of the case, which states:
``Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person.''
The explanatory notes continue to say that article 98.1 draws the distinction between state parties and non-state parties, and make it clear that the surrender of a person for whom a warrant has been issued who is a representative of a non-state party can occur only once the permission of their state party has been obtained, if that person is a diplomat or has immunity. That suggests that subsection (4) is not consistent with the statute, although a case may be made that it would be consistent with article 98.1 if the reference to subsection (1) were struck from its provisions. However, there is a case for striking the subsection altogether. The Government—having resisted any discretion thus far—should not have discretion if they are in receipt of a warrant from the ICC, they should get on with it and surrender the person for the crimes that the ICC had identified.
What do the provisions of article 98.2 mean? I sat down with and without a wet towel and read it several times to try to understand what it means and whether it is different from article 98.1, but I do not understand. I should be grateful if the Solicitor-General would explain, in simple language that a simple ex-soldier like me can understand, what article 98.2 is intended to achieve.
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
Before I lose that point about article 98, paragraph 1 relates to international law, whereas paragraph 2 relates to international agreements. An obligation may apply under international law, but international law can be customary, for example. Paragraph 2 refers specifically to obligations under international agreements—in other words, treaties—and I suspect that that is the distinction.
Mr Crispin Blunt (Reigate, Conservative)
I concede the point about international agreements. However, is there a difference between a requested and a sending state? What do those terms mean? I understand that the requested state is on the receiving end of the request from the ICC, but how is that different from the sending state?
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
We may have to return to that. A moment ago, we discussed transit. The sending state may not be the requested state because of a transit issue. Perhaps I shall receive further clarification in due course. It seems that the sending state is the one that sends the diplomat, whereas the requested state is the one that receives the request. I hope that that helps the hon. Gentleman.
Mr Crispin Blunt (Reigate, Conservative)
Surely the two are the same. Why would the ICC issue a request to a state that could not send the person? That is why I do not understand article 98.2.
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
I think that we had better return to that.
It is unsurprising that we return to the argument advanced by the right hon. Member for Caithness, Sutherland and Easter Ross, as it was dealt with in the other place and is important. He and the hon. Member for Reigate referred to our obligations under the Rome statute, article 27 of which states that immunity shall not constitute a bar to prosecution before the ICC. States that sign and ratify the statute agree to that provision. The clause provides that diplomatic and state immunity cannot shield representatives of state parties from arrest and surrender. As the right hon. Gentleman said, the position of state party is clearly set out in the statute.
The same is not true in relation to non-state parties, which will not have agreed to article 27. Under international law, we are obliged to accord diplomatic and state immunities unless the state involved has agreed to waive them. We have said all along that we hope that as many countries as possible will become state parties so that the category of non-state parties will be very small—in an ideal world, it would be non-existent. If they became state parties, they would agree to article 27.
Clause 23(4) provides the Secretary of State with the power to direct that arrest and surrender proceedings shall not take place against someone who enjoys state or diplomatic immunity, which would not prevent the proceedings from going ahead were it not for the clause. The clause also states that the Secretary of State can do that only after having consulted the ICC and the state involved. The clause also clearly sets out that the Secretary of State can do that only after having consulted the ICC and the state concerned. We explicitly accept that the Government must consult the ICC about whether issues of state or diplomatic immunity are involved in an ICC request. The clause is drafted in a way that provides for consultations with the ICC and the sending state of the person concerned, and their opinions would be carefully considered before a decision was taken.
We do not envisage that such circumstances will arise often, if at all. We are providing for a situation that is rare, and the details are difficult to predict. That is why subsection (4) has been included. As the hon. Member for Reigate mentioned, there was no such provision in the consultation Bill. We amended it as a result of comments made by NGOs and by those in another place.
Amendment No. 41 would tie the hands of a future Government with regard to rare and unusual cases that would be difficult to foresee and the details of which would be hard to predict. However, the provision makes it clear that the views of the ICC and the state concerned would be significant factors in any decision that might be taken, and it should therefore be included as a prudent measure against an uncertain future. The right hon. Member for Caithness, Sutherland and Easter Ross might not agree with that, but our policy is clear: war criminals must be brought to justice.
The hon. Member for Reigate correctly pointed out that subsection (4) covers state parties and non-state parties. As I have said, we have included the provision because we live in an uncertain world, and I therefore resist the amendments.
Mr Crispin Blunt (Reigate, Conservative)
Having listened carefully to the Solicitor-General's comments, I will not press my amendment. I wish to study what he has said, and to take further advice about the consequences of the Government's position, particularly with regard to the issue of immunity and the question of whether people who ought to be brought to justice under the statute will be able to escape prosecution. I want to discuss those matters with some of the learned friends who are associated with the NGOs that are following the proceedings before I adopt a clear position.
I am still looking forward to a final explanation of article 98.2 and its differentiation between a requested state and a sending state—although I fail to see why the ICC should send a request to a state in which the person concerned is not residing.
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
I apologise for omitting to explain that. The hypothetical country that is always used in discussions about international law is Ruritania. If there is an ambassador for Ruritania, the sending state is Ruritania. The ICC may request the United Kingdom to surrender that person, and in that case the UK would be the requested state. That would be the distinction—if the ambassador is from Ruritania, that is the sending state. The requested state is the UK. I hope that that is a sufficient explanation.
Mr. Blunt indicated assent.
Mr Robert Maclennan (Caithness, Sutherland and Easter Ross, Liberal Democrat)
The Solicitor-General is right to say that there is simply a division of opinion on this issue, which is probably not easy to resolve. I am no clearer about the circumstances that the Government are fearful of, and, in all candour, the Solicitor-General admitted that he could not foresee any in which it would be necessary to rely on the provisions in subsection (4). That proves to me that it is—to use the lawyer's phrase—ex abundanti cautela that the clause is being put forward. I remain unconvinced by the arguments deployed by the Solicitor-General. This is a straight issue of principle about who should decide whether or not the immunities persist or obtain. It seems to me that the statute provides for it to be in the determination of the court and not the Government. Should there be a conflict between the two, the court would decide. However, in the light of uncertainties, it would be inappropriate to press the matter. I shall certainly take further counsel on the point and perhaps return to it a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I want to take this opportunity to press the Solicitor-General further on the circumstances that surround the clause regarding state or diplomatic immunity. In his response to the amendments, he said that the Government's policy was clear, and that war criminals must be brought to justice. That is a commendable policy and one with which we would all agree. However, we require further and better particulars. It appears that under our commitment and ratification process—the introduction of this legislation will mean that all UK citizens, whether soldiers or politicians, will be subject to surrender to the ICC—we as a country can play host to visiting diplomats, heads of state and others who we will not be able to touch with a bargepole, as they say in some quarters. I would like the Solicitor-General further to identify the circumstances in which a visiting vile man could come on a shopping trip to Harrods and remain at liberty and at large. All of us want to satisfy ourselves that that cannot happen in the UK. It would be a crying shame to have gone through all the processes of negotiating the statute of Rome, introducing the legislation and discussing it at great length, to find that there was a lacuna whereby a perpetrator of a crime, who had diplomatic and state immunity, could come here for a shopping trip. That would upset us all greatly.
Ms Oona King (Bethnal Green and Bow, Labour)
Does the hon. Lady share my joy and pride at finding on closer inspection of the Bill that no such loophole would exist as long as the said war criminal was being investigated by the ICC, and the ICC made a request to the Government for his extradition? The said criminal would be brought to justice, notwithstanding the shopping trip to Harrods.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I thank the hon. Lady. Sadly, she is merely a Back Bencher and not in government. I seek such reassurances from those on the Government Front Bench.
I want to explore how far we can push the argument. With regard to the perpetrators of a war crime who would not be subject to immunity on United Kingdom territory along the lines that the hon. Lady and I have been discussing, in some circumstances it may be desirable for such individuals to be subject to immunity pro tem. Over the past few years, there have been many negotiating processes, for example, at Rambouillet and Dayton. In an attempt to reassure myself and the Committee that peace processes can move forward, it is apposite to raise such issues to ascertain whether there would be room under the Bill and, in what circumstances, to enable a negotiating process to take place on a third party's territory. Instead of Rambouillet, could a peace process between two warring factions be held at Chesham and Amersham? We are considering the tension between a conflict resolution and justice. We must ensure that we have the correct vehicle for ensuring justice, but we do not want to inhibit a potential peacemaking or negotiating process that could result in the termination of a conflict and the saving of lives.
I hope that the Minister will deal with that issue because we must ensure that we are not cutting off a route to the many countries that will roll into the process. We are moving towards 60 and, as has been expressed, we are hoping eventually that the United States will decide that its concerns have been satisfied as, indeed, we hope that our worries will be under the Bill. That will be of small comfort, however, if we develop a court and a process that will inhibit the saving of lives and the cessation of violence and hostilities between parties.
The problem is of concern to me, and it may be to those to whom we offer asylum. We rightly continue to offer asylum to victims of conflict and persecution throughout the world, but people may wish to see the perpetrator of a crime brought to justice who might be invited here to negotiate a peace process. I want to ensure that the Bill does not remove any options for an exit route, which could bring about a cessation of hostility.
I refer to the matter because it was raised by the former Foreign Office Minister with responsibilities for Africa, the hon. Member for Neath , who, when asked about Dr. Savimbi, is alleged to have said:
``I would say to him: `If you are willing to go into exile and retire and live out your days in the comfort you are obviously able to provide for yourself, it would be possible to provide guarantees about that.'''
He is alleged to have said that to the Electronic Telegraph. I do not believe that that statement has been revoked, although the Minister may tell me differently. Certainly, that was the reported statement of the former Foreign Office Minister, who may have been trying to ensure that there was a way of concluding conflict.
If the statute, when it is enacted, removes the possibility of an exit route, it would be wrong to let the legislation slide through without exploring the limits and the possibilities of providing an exit route to individuals who have undoubtedly been part of revolting war machines and disgusting tactics used against their own people and others. There is no doubt that it is desirable to remove such individuals from the arenas concerned, and it is therefore necessary to consider the matter as a potential way of bringing hostilities to a conclusion. However undesirable it may be morally, it may be practically expedient to conclude matters. I am not advocating that as a course of action; I am merely trying to explore what possibilities would still exist if the legislation were firmly on the statute book.
There is also the question of the potential to disrupt diplomatic processes. Will the Minister reassure me that he does not see any reason to rewrite the diplomatic rules as they apply, or to develop further the way in which we do our business? It seems that the statute may deter face-to-face diplomacy if there is a fear that an individual may fall within the jurisdiction of the statute. Will the Minister therefore say how he has viewed the potential for the reduction of face-to-face diplomacy as a result of the treaty? What discussions has he or the Department had with other countries on the way in which they will handle such a situation? Our relationship with other countries vis-a-vis the statute is also of great importance. We cannot fulfil the conditions of the statute in isolation—we are dependent not only on the operation of the court but on the way in which other countries operate their regimes and diplomatic processes, and how they participate in events on the world stage.
I hope that this was a suitable debate in which to raise such issues, and I look forward to a response from the Solicitor-General.
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
The hon. Lady makes several points, some of which we shall discuss later in relation to universal jurisdiction. She mentioned the case of the person coming on a shopping trip. We anticipate that, once the court is up and running and states have introduced into their laws provisions comparable to part V to deal with such crimes nationally, people who commit them will not be taking many shopping trips. I suspect that already, as a result of as the Pinochet case, for example, people who commit war crimes, crimes against humanity, genocide and so on are not even thinking of taking shopping trips. However, we shall return to that. As we have said, as a result of signing up, immunities in general will not operate.
The hon. Lady makes a valid point about how the operation of the Bill might affect the peace process and inhibit Dayton-type discussions, for example, but I believe that it has already been dealt with. Our view is based on article 16 of the statute, which states that when a resolution is adopted under chapter 7 of the charter—in the event of a threat to international peace and security—the Security Council may ask the ICC to suspend an investigation. If delicate peace negotiations are under way, the Security Council could pass a resolution, and Dayton-type discussions could take place. The hon. Lady makes a valid point, but it is dealt with by article 16.
More generally, a point of principle is involved. We would probably say that justice provides the best possible foundation for long-term peace.
Mr Crispin Blunt (Reigate, Conservative)
To make it absolutely clear in discussing a case such as Dayton and peace and reconciliation, the only provision in the statute under which investigations can be deferred is article 16. It requires all permanent members of the Security Council not to exercise their veto for that resolution to be passed. The resolution must be renewed every 12 months to sustain that position. Let us consider a case that does not relate to an international problem on which all five permanent members and a majority of the Security Council are agreed, and processes such as Dayton that relate to a national peace and reconciliation process that the international community is not willing to approve, or a regional process for which Security Council approval is not affirmative without a veto. In such circumstances, it is under article 16 only that exceptions can be found, and such peace and reconciliation processes could not proceed in the way that Dayton did.
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
Simply because the problem is regional does not mean that it would not fall under chapter 7 of the charter, and the Security Council might pass a resolution. The hon. Gentleman is right that the Security Council must make a decision, which requires unanimity. However, in the case of a Dayton-type situation, which was regional in the sense that it was European, or other regional conflicts, that will not necessarily act as a block on the Security Council passing the resolution.
The hon. Gentleman is right that the resolution would operate for only 12 months and would have to be renewed, but as I gave way to him, I was about to say that we would take the view as a point of principle that justice, generally speaking, provides the best foundation for long-term peace. We believe that identifying and bringing to justice those persons who have committed the most serious crimes possible is the best foundation for reconciliation in war-torn societies. It may help the hon. Member for Reigate if I add that the national tribunal for the former Yugoslavia was set up under chapter 7 of the United Nations charter. The hon. Member for Chesham and Amersham raised a valid point, but article 60 provides the answer.
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
I thank the Solicitor-General for his response, but he did not address my point about the suggestion made by the hon. Member for Neath when a Foreign Office Minister. What are his views on that proposed solution in relation to the provisions in the Bill?
Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)
In Hansard, on 8 March, at column 382, my noble Friend Baroness Scotland of Asthal, the Under-Secretary of State, Foreign and Commonwealth Office, refuted the statement alleged to have been made by my hon. Friend the Member for Neath, the Minister for Energy and Competitiveness in Europe. I can hand the hon. Lady that passage, from which she will see that my hon. Friend did not make the statement about immunity to which she referred.
Question put and agreed to.
Clause 23 ordered to stand part of the Bill.
Clause 24 ordered to stand part of the Bill.