§ Order for Second Reading read.
§ 7.26 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Elystan Morgan)
I beg to move, That the Bill be now read a Second time.
The purpose of this Bill is to enable the United Kingdom to accede to the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations in December 1948.
The word "genocide" was, reputedly, coined by the late Dr. Raphael Lemkin as recently as 1944. As a word it may be open to criticism, and, indeed, it was criticised on the Second Reading of the Bill in another place, but its purport is clear enough. It means the deliberate destruction of a national, racial, religious or ethnic group.
In 1944, this was a matter very much to the forefront of people's minds. It was a time when the full measure had not yet become apparent of the inhumanity which had been perpetrated by the Nazi Government of Germany before and during the Second World War on millions of innocent men, women and children who had committed no crime but simply happened to be Jewish or members of some other persecuted minority. The awful revelation of Auschwitz, Belsen and Dachau had not yet burst upon an appalled world. But enough was known for men to realise that the monstrous crime of genocide which they had come to associate with past times and distant places—with ancient Rome and the Mongol skull pyramids of the late Middle Ages—that this old enormity was back in their midst.
Two years later, we were fully aware of the whole terrible story of the systematic annihilation of racial minorities which the Nazis pursued with all the monstrous aids of twentieth-century science. There was a world-wide revulsion at these new means of perpetrating old barbarities. And so it was that, at its very first session in 1946, the General Assembly of the United Nations felt impelled to take steps to outlaw this evil. It, therefore, approved two resolutions. In the first, it affirmed the principles of 481 the Charter of the Nuremburg Tribunal, which recognised that war criminals were not only those who violate the laws or customs of war but all persons who carry out "crimes against humanity". In the second, the Assembly affirmed that genocide is a crime under international law and that those guilty of it, whoever they are and for whatever reason they commit it, are punishable. It went on to institute the necessary researches to enable the present Convention to be drawn up. I shall not weary the House with a detailed history of the Convention, with which many hon. Members will, no doubt, be familiar. Sufficient be it to say that it was adopted by the General Assembly on 9th December 1948, and came into force on 12th January, 1951, 90 days after the minimum number of 20 States had ratified or acceded to it. The present position is that 73 countries are parties to the Convention. There have been 38 ratifications and 35 accessions, the distinction being that the 40 States which signed the Convention by 31st December, 1949, may subsequently formally ratify their signatures, while those countries which did not then sign may accede to the Convention by depositing what are called instruments of accession with the Secretary-General.
As the House will, no doubt, recall, the Government's decision to accede to the Convention was announced by my right hon. Friend the then Minister of State at the Foreign Office on 15th November, 1965, and an undertaking was then given that, to enable this to be done, legislation would be introduced at a suitable opportunity to bring our domestic law into line with the Convention. To consider what this involves it is, I believe, necessary to look at the main features of the Convention itself.
It is stated in the first Article that genocide, whether committed in time of peace or in circumstances of war, is a crime under international law, and this is the fundamental principle on which the Convention is based, and this is an ideal which we shall endorse by acceding to it. The acts which constitute the crime of genocide are described in Article II, and this we have reproduced in the Schedule to the Bill. Contracting States are required by Article V to enact legislation providing effective punishment for persons guilty of genocide, and, by 482 Article VII, to make genocide an extradition crime and for it not to be regarded, for that purpose, as a political crime. We can for the present discount that part of Article VI which relates to the trial of the offence of genocide by an international penal tribunal since no body capable of exercising the necessary international criminal jurisdiction has yet been created. We are left, therefore, with the need to provide for the crime of genocide, as described in the Convention, to be an offence both under our domestic criminal law and for extradition purposes.
It would, perhaps, suit the convenience of the House if I now turn to the individual provisions of the Bill to see how it is proposed to fulfil these requirements.
Clause 1 makes the acts specified in Article II of the Genocide Convention offences under the civil and military laws of the United Kingdom, and provides appropriate penalties for those who commit them, that is, life imprisonment where the offence is one which involves the killing of any person, and up to 14 years' imprisonment in any other case. It will not have escaped the notice of hon. Members that all, or almost all, the acts which the Convention includes in the generic term of "genocide" are already offences under our domestic law. Nevertheless, in making genocide, as such, an offence, we are not only fulfilling one of the basic requirements of the Convention but are also enabling persons charged with genocidal acts to be extradited for the specific offence of genocide, which will probably be necessary for compliance with the strict requirements of extradition law, and in any event will be in accordance with desirable extradition practice.
It is, however, Clause 2 which is primarily concerned with the extradition aspects of the legislation, and it contains two not inconsiderable departures from the normal extradition practice followed in this country, and I think I should explain these in some detail.
As I have said, Article VII of the Convention not only requires contracting States to grant extradition for genocidein accordance with their laws and treaties in force".It also confirms that genocide, and the other ancillary offences listed in Article 483 III, shall not be considered as political crimes for the purpose of extradition. All the Statutes which govern the surrender of offenders from this country to foreign and Commonwealth countries and the taking of evidence for use in criminal proceedings overseas contain safeguards respecting offences of a political character. This country, with its long heritage of liberality, has always prided itself on its tradition of political asylum; its willingness, whatever the cost, to accept a genuine political refugee. It is this tradition that has found expression in these safeguards in our extradition law, safeguards that we have only recently thought it right to extend, as regards the Commonwealth, in the Fugitive Offenders Act 1967.
In the case of genocide, however, Article VII of the Convention requires us to suspend this protection. As recently as six years ago the right hon. Gentleman the Leader of the Opposition, who was then Lord Privy Seal, told us of the doubts which the Government of the day felt on that score, and which had up till then deterred them from acceding to the Convention. One cannot, however, overlook the fact that up to now 73 countries, many of whom are no less liberal in their outlook than ourselves, countries like Australia and Canada, the Netherlands and Sweden, have felt able to accept this restriction. All of them have been prepared to accept that genocide is so grave and vile a crime that a person who has committed it should not be able to evade extradition on political grounds, and after mature thought—and I concede that it is not a decision which could be taken lightly—the Government have decided that this view must surely prevail here also.
I do not wish to minimise the importance of this decision, particularly when it is viewed, as it must be, against the background of the circumstances in which charges of genocide are likely to be made. The Government accept that, in the emotional atmosphere which gives rise to accusations of genocide, one cannot be sure that purely vindictive applications will not be made for the surrender of an alleged offender. Under the terms of the Convention as reproduced in the Schedule to the Bill, however, it will be necessary to show that the act was 484 "committed with intent" and any such charge will have to be substantiated by the production of a prima facie case in accordance with the normal requirements of the Extradition and Fugitive Offenders Acts. This, we consider, should provide the necessary safeguard.
As I mentioned earlier, the Clause contains another departure from customary extradition practice. This lies in subsection (3), which allows extradition proceedings to go forward even where the offence for which surrender is sought was not, at the time of its commission, an offence under the law of the country where it was committed. The Bill is, in short, providing for modification of the normal rule of "double criminality" which requires that an act for which extradition is sought shall have been an offence, at the time of its commission, under the laws of both the State making the request for extradition and the State on which the request is made.
We have to remember, however, the peculiar circumstances in which the crime of genocide may be committed. Past experience has amply shown that it may be committed by or with the consent of the authorities in power at the time, and that those authorities may take the necessary steps to legitimate such acts by, for instance, legalising concentration camps, experimental surgery, and so on. It would make nonsense of the Convention and of this legislation if its provisions could be completely negatived by the simple expedient of legitimating legislation of this kind.
In order, therefore, to frustrate any such unscrupulous device, we have followed the example of Article 7 of the European Convention on Human Rights. The House will perhaps allow me to remind it that that Article provides generally that no one shall be held guilty of any criminal offence which did not constitute an offence at the time of its commission, but it specifically excludes acts which arecriminal according to the general principles of law recognised by civilised nations".Genocide is such a crime, and it seems indisputable that it should, therefore, be made a returnable offence whatever its legal standing when and where it was committed. This the Bill does, even although the Convention does not strictly require it.
485 Clause 3 extends the extradition provisions of the Bill to the Channel Islands, the Isle of Man and the dependencies. It also enables the other provisions of the Bill to be similarly extended by Order in Council. Thus minor modifications can, if required, be made in the domestic provisions in order to meet differences in the law and the judicial structures of the individual Islands and dependencies.
The Schedule reproduces Article II of the Genocide Convention, which specifies the acts constituting the offence of genocide.
Before I conclude, I should like to try to set this legislation in perspective. I have already said that we are not creating offences which are, in essence, new offences under our domestic law, and it would be a singularly rare and unhappy event if there were ever to be a prosecution for genocide in this country. As to what use may in the future be made of the extradition provisions, one cannot of course say. But I would like to make it clear to the House that we do not know of anyone currently in this country who has ever been accused of genocide but has evaded extradition by reason of the political safeguard. The importance of this legislation does not lie so much in the number of prosecutions to which it will give rise, or in the number of persons whose extradition for offences of genocide it will secure, as in the proof which it affords that the United Kingdom, as a civilised nation and a firm defender of human rights, condemns this barbaric crime and undertakes to prevent and to punish it.
May I conclude by saying that I am aware of the Motion in the names of my hon. Friend the Member for Swindon (Mr. Francis Noel-Baker), and others, and I am only too sorry that, despite the rapid progress which was made with this Measure in another place, it was not practicable to complete its progress in time to enable us to accede to the Genocide Convention by 10th December last—Human Rights Day. With, however, the approval of the House, this Bill will, in the very near future, place us in a position to add the name of the United Kingdom to the parties to the Convention, and, by so doing, make a significant contribution to our international obligations.
§ 7.45 p.m.
§ Mr. Antony Buck (Colchester)
We on this side of the House believe that it is appropriate for the House of Commons to express its abhorrence of the evil of genocide by passing this Bill. The Convention to which we shall accede if we pass the Measure was adopted on 9th December, 1948, by the General Assembly of the United Nations. Before that, the Assembly, at its very first Session in 1946, had passed a resolution condemning genocide. The Assembly had fresh in their memory the transcendently horrific treatment meted out to the Jews by the Nazis, and it was certainly right that one of the first acts of the Assembly should be the condemnation of what so horribly had happened. We are right to enact domestic legislation which is of limited real effect, but which expresses our loathing of genocide or anything tinged by it.
The Bill started its Parliamentary career in another place, where it was pointed out that it was particularly appropriate that legislation should be brought forward in Human Rights Year, and with that no one will disagree. In speaking of the Bill it would be insensitive not to express our feelings of deep and bitter frustration that we can, in practice, do so little to prevent acts in many parts of the world which are causing fantastic distress and misery to national, ethnical, racial and religious groups. The front page of one of our great dailies today mentions a matter of grave concern relative to this matter. It may be that these Acts are not taking place with any genocidal in tent, and we fervently hope that they are not. All that we can do is to send material help where it is called for; and that we are doing, and it is very valuable. We can also by our example and by our words here hope, however remotely, to influence others.
To turn to the Bill which has been so fully explained by the Minister, I admit that I have misgivings about Clause 2(2). which prevents a person whom it is sought to have extradited on grounds of being guilty of genocide from putting forward the defence that his alleged crime was a political one. Such a provision might be thought to derogate from the right to come to this country to seek political asylum. History says that many crimes are committed in the name of politics, but 487 can it be said that it is ever right to allow the commission of the crime of genocide to be met by the defence of its being a political crime? That is an issue which we must face.
One is strengthened in the view that injustice can hardly be caused by the Bill by the definition of genocide which is set out in the Schedule and which requires specific proof that any acts done shall be done with the intent to destroy in whole or in part a national, ethnical, racial or religious group. It would have to be established that the person whose return was sought to the country where it was alleged that he had committed genocide had had the intention of committing genocide, and this intention would have to be proved, prima facie, before a British court. If a person had, prima facie, such an intent, it is difficult to see why he should not answer for it. One is strengthened in the view that injustice can hardly be caused by knowing that the Metropolitan stipendiary magistrates, who in the main deal with this, give the closest attention to such cases and would not easily be satisfied that a person had this intent unless it were clearly shown.
It would be useful to know the figures of the numbers of applications for extradition which are made and the number which are refused. My impression is that quite a large number are refused, and that was stated in another place. I do not expect to hear the figures tonight, but perhaps they could be given in Committee. I suspect that the figures will be reassuring, and show the close attention which is given to this matter.
The House should give close scrutiny to any legislation which involves a limitation of the political asylum which is traditional to this country. For the reasons which I have stated and which were stated also by the Minister who opened the debate, this seems to be a legitimate derogation from the absolute right to political asylum.
The other matter of substance to which I wish to refer is the way in which the Bill goes further than is required by the Convention. It provides that genocide shall be a "returnable" offence despite the fact that at the time of its commission it may not have been an offence under the law of the land where 488 it was allegedly committed. This, again, has caused certain misgivings. I appreciate that Article 7 of the European Convention on Human Rights, while providing a person shall not be held guilty of a crime made criminal retrospectively, none the less went out of its way to make a specific exception in the case of acts which are criminal according to the general principle of law recognised by civilised nations. I think that that indicates the way in which any objection to this extra provision in the Bill can be met, but it is a matter on which we may want further discussion in Committee and some assurances from the Government. One does not like going against the basic principle laid down in Article 7 of the Convention on Human Rights that a person should know when he commits a crime that it is a crime, and it is only in exceptional cases that exception to that is acceptable.
We recognise that the Bill makes little substantive alteration in our domestic law, and it is difficult to see how any act of genocide as defined in the Bill would not already amount to an offence under our criminal law. But we recognise equally that it is right to clear up the position about extradition, and it is no bad thing that an affirmative message should go from Parliament that it is united in condemning the heinous crime of genocide.
To legislate to make propaganda is not usually very satisfactory and, in a sense, that is perhaps what we are doing. But a Bill of this character can be regarded as a legitimate exception because of the extreme view that we all take of the crime of genocide.
§ 7.52 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
I do not think that it is likely that there will be any deep divisions in the House on this subject, and I rise only to offer a warm welcome to the Bill.
As my hon. Friend explained, its purpose is to enable the United Kingdom Government to accede to the Genocide Convention, which was adopted over 20 years ago by the General Assembly of the United Nations on 9th December, 1948. That was the day before the General Assembly adopted the Universal Declaration of Human Rights.
During those 20 years, again and again successive Governments of the 489 United Kingdom have been asked from benches on both sides of the House when it was proposed to accede to the Genocide Convention. For a time, we were told that the Government had the reservations to which my hon. Friend referred. Then we were told that the matter was being considered. After that, it went to sleep again, and finally, on 15th November, 1965, my right hon. Friend the Minister of State said that in principle the Government had determined to accede to the Genocide Convention and to introduce this legislation. That was three and a half years ago. We waited, and it did not happen. Again the Government were asked what was delaying the matter. We were told that it was a shortage of what my right hon. and learned Friend earlier this evening called "that rather rare commodity". Parliamentary time.
More than 20 years after the Convention was originally adopted, here we are at the end of the rainbow. Those of us who have perhaps made ourselves tiresome by our repeated Questions about it would be ungracious if we gave less than a warm and unqualified welcome to the Bill.
There is another reason why it should be welcomed. The Genocide Convention is not the only international convention relating to human rights to which the United Kingdom is still not an adherent. There are other subjects where a similar pattern might be followed and where we are waiting for legislation to enable us to accede to the convention. To name only one, before I am ruled out of order, there is the I.L.O. Convention on Discrimination in Employment. Certainly I hope that nothing will be said or done tonight to discourage the Government from adopting a similar course in those cases. Now that the Government have done it in this one, I hope that they will realise how painless the operation has been. I hope that they will receive the acclaim to which they are entitled, so that they will go away saying, "We must do it more often."
There is yet a third reason why I welcome the Bill and hope that it will receive an unqualified welcome in all quarters. As the hon. Member for Colchester (Mr. Buck) said, this legislation 490 in itself will not make a great deal of difference to our criminal law. However, I am not sure that I agree with him that it will have little real effect. There are very many measures which could be taken with a real effect internationally in dealing with genocide. Previously, when the United Kingdom has spoken in international circles and pressed for these matters, it has been met with the answer, "But you do not really care about this. You have not even introduced it into your own legislation. You have not acceded to the Convention. You are speaking with a double voice."
For the first time, the Government will be able to go to the international community and say, "Now let us press for an international criminal court." When the Genocide Convention was first discussed twenty years ago, it was accepted on all sides almost without question that, hand in hand with the domestic legislation for which the Convention called, there would be set up an international criminal court. The whole concept of human rights means that the individual can appear before the world community as a plaintiff, even against his own Government. What was intended was that he might also appear before world opinion as a defendant, so that it would no longer be possible for someone to plead in answer to a charge of this kind that he was acting under the instructions of his Government, and even the almighty nation State could never again protect individuals who committed crimes against humanity in this way.
What has been urged from time to time about this concept is that it would be a serious inroad upon national sovereignty and that it would be a very serious move against the very concept of a nation State. Some of us believe that that is one of the strongest arguments in its favour.
Since then, Governments have lost the original conception of human rights with which they emerged from the last war. Perhaps they have also lost that very real sense of horror which everyone felt at the time when confronted with systematic genocide.
So we have this narrow obsession with national sovereignty which, in 1954, 491 resulted in the proposal for an international criminal court being adjourned in the hope that it would sleep the sleep of death. Now, in consequence, we can go back to the international community and wake it up again, without being accused of inconsistency. It may be that the United Kingdom Government can put in a word in the right place for the scheme of Professor Gottlieb that we might set up an international prosecuting commission which will issue international warrants for the arrest of people who, internationally, have commited offences of this kind, wherever they might be found in the world. This is now the subject of a feasibility study before the Human Rights Commission.
Again, it would no longer be possible for the defence to be urged against the United Kingdom Government that they were acting inconsistently because they did not have this concept in its legislation. It might be possible for the Government to urge for the appointment of a United Nations Commissioner for Human Rights so that there would be someone to investigate complaints of this kind wherever they took place. Whatever might be the effect on our domestic legislation, here would be a point where we could cut some effective ice and might be able to help, for example, the Kurdish people in Syria and Iraq, the Anyanya people in Sudan, or the Indians in Brazil.
This is only the beginning. It is very much the beginning. But, in the name of humanity and justice, let us at least welcome the beginning.
§ 8.0 p.m.
§ Sir Douglas Glover (Ormskirk)
I think that many hon. Members in the House know that I was instrumental in the Bill not going upstairs to a Second Reading Committee, because I felt that a subject of this importance should be debated on the Floor of the House. I make no apology for being successful in that rather irresponsible escapade. I was sorry that, as a result, it meant that we did not have Second Reading during Human Rights Year, but I still think that it was right and justified that the debate should take place on the Floor of the House.
Like others who have spoken, I give the Bill warm and enthusiastic support. 492 I will not devote my time to the discrepancies in the Bill, which are quite considerable, and many lawyers might be rather critical of its wording. The Bill is a causal result of the action we have taken in saying that we will ratify the Genocide Convention at the United Nations. Therefore, I believe that the House has a duty, before giving the Bill a Second Reading, to ask the Government—and I hope and believe that they will give a favourable answer to my questions—whether their ratification of the Genocide Convention is a negative or a positive ratification. I will explain what I mean by that as I develop my speech.
As many Members know, I was a delegate at the United Nations in 1962. I have attended its sessions on many occasions since, representing, as many people also know, the Anti-Slavery Society, perhaps the oldest extant society in the world devoted to the dignity of man and the liberation of the human spirit. I am proud to be Chairman of that ancient society. I want to speak tonight against the hideous hypocrisy which permeates a great deal of the activities of the United Nations, hypocrisy which we, as a nation—and I am sure I speak for all sides in this House—have done all too little to combat.
From our point of view the Bill would probably only have had effect in the Middle Ages when the great controversies were going on between religious sects, and the only individual who would have been covered by it would have been Hereward the Wake who deliberately said that it was his intention to exterminate all the Normans. He is on record as saying that, and, therefore, he would presumably have been prosecuted under the Bill.
That is not the purpose of what we are debating tonight. When we have ratified the Genocide Convention, what action do Her Majesty's Government propose to take in the United Nations? May we expect from them a resolution demanding a Commission of Inquiry into the genocide going on in Southern Sudan? Action from the United Nations is long overdue. Now that we are ratifying the Genocide Convention, as the hon. Member for Rowley Regis and Tipton (Mr. Archer) so movingly said, and now that our hands are clean, are we going to move a resolution demanding that action 493 be taken to deal with the problems of Southern Sudan where not thousands, but tens of thousands of people have been exterminated purely and simply because their racial basis does not agree with the majority of the nation.
What action are Her Majesty's Government proposing to take in the United Nations to protect and succour the Amerindians in South America? We all know—or probably we do not know—that the Amerindians, the native people of the great continent of South America, are, in almost country where they still survive, a depressed and persecuted minority. About a year ago some of us may have read in The Times and in the French Press—and, I am glad to be able to report, widely publicised in the Brazil Press—the most outrageous but truthful story of the extermination of the Amerindian in Brazil: planes flying over villages and bombing the inhabitants, the villages being surrounded by machine gunners to shoot down those who escaped the bombing. Where have we read in our newspapers of any resolution or motion deploring this outrage in the United Nations or anywhere else? The terrifying thing is that these atrocities took place by and with the connivance of government officials whose job in life was to protect the Amerindian in Brazil. Yet, not only did this bombing go on, but they gave food to the Amerindian which had been laced with arsenic, and even the doctor employed by the government injected them all with smallpox. That is perhaps the most classical example we have had in some years of methods designed to exterminate a minority group in a nation.
I ask the Government now that they have ratified the Convention, whether they will put down a resolution at the next meeting of the General Assembly deploring that this sort of situation should exist and demanding that machinery be set up in the United Nations to deal with it? If we do not, if all that we do is to ratify the Convention, we are being guilty of the hideous hypocrisy about which I spoke a few moments ago.
I do not want to detain the House too long. But what about the Nagas in India? I will not devote my time to the tragedy of Biafra. In passing, about two years ago when we debated the Bill to give independence to Botswana, I made what I hope was a moving speech on behalf of the bushman in the Kalahari 494 Desert. One hon. Member opposite was kind enough to come to me afterwards and say, "That is the best speech on an off beat subject that I have heard in a very long time." We gave independence to Botswana, but we took no trouble to see that the rights and interests of the bushman in that country were protected. There is no doubt that the deliberate aim of the majority population was to see the bushman either exterminated or die out.
What are we going to do when we pass the Bill and ratify the Convention? The truth is that whatever high hopes there were in 1945, the United Nations has a deplorable record in human rights and the dignity of man. Thousands of resolutions have been passed in the Third Committee, of which I was a member. I came away a good deal disillusioned. I think that Lady Gaitskell, who represented the party opposite with great distinction for two or three years on that same Committee, shares my disillusion and disgust at the hypocrisy that goes on in these deliberations.
Thousands of resolutions have been passed, in the Third Committee, in the Economic and Social Council, and in the Commission on Human Rights, yet not one slave has been liberated in all the great expanses of the world, nor one Indian in South America nor one native of the Southern Sudan saved from death or degradation. As a result of any resolution passed by the United Nations, not one woman has been saved from prostitution, not one human right has been made more secure. Resolutions, resolutions, resolutions, with a deliberate campaign going on in the United Nations to make certain that no resolution with teeth is ever passed to do something about the problem which we are discussing. Time and again I have seen operating in the United Nations resolutions which started with quite a lot of power, but were gradually watered down until, when the resolution was passed by the General Assembly, it had been made innocuous and therefore brought no improvement in the status of the individual.
It was Mr. Dean Acheson who said that we in Britain had lost an empire, and yet had not found a rôle. I shall give this country a rôle. We are no longer one of the great powers from the point of view of aircraft or ships, but we should become the nation which, at the 495 United Nations demands action, and year after year we should on this question of human rights put down resolutions demanding action, backed by a resolution saying how that action can be brought about to deal with slavery, genocide, and the rights of women. We should fight those resolutions through, even though we know that for years we shall still fail. But at least we shall be able to take pride in what we are trying to do. At least we shall be the nation in the United Nations which nobody can point the finger of scorn at as being another of the hypocrites who make up that great assembly.
The Minister said, almost with pride, that 20 years after the Genocide Convention 73 nations out of 127 had ratified it, so 52 have not. The Supplementary Convention on Slavery of 1956 has now been ratified by 78 nations, so more than 40 have not ratified it. I shall not weary the House tonight—but I could—by going into the details of the resolutions in the United Nations, and in the Economic and Social Council, twisted by knaves into a political motive, forgetting what it is they are trying to achieve.
We have been trying for 20 years to get the United Nations to bring in some kind of slavery board, similar to the Narcotics Board, to deal with the problem of slavery. Every time this resolution comes up, the teeth are removed from it, and I criticise my hon. Friends on this side of the House as much as I do those on the other. I understand that it is very difficult to take action here, but there has hardly been a resolution with teeth moved by the United Kingdom.
At the United Nations in 1962, I moved a resolution on slavery, when, strangely enough, we had 100 per cent. support. Every nation voted for it.
§ Mr. Deputy Speaker (Mr. Harry Gourlay)
Order. We are discussing the Second Reading of the Genocide Bill, not the question of slavery.
§ Sir D. Glover
With the greatest respect, Mr. Deputy Speaker, I was using my closest experience about what had happened in respect of slavery, because the same thing has happened in respect of genocide. I shall not weary the House much longer on this theme, but always the resolutions are watered down.
496 I am not saying that this country, by changing its policy at the United Nations in respect of genocide and all the other aspects of human rights, will achieve immediate success, but I think that we would have a rôle worthy of our history a rôle which is desperately needed at the United Nations, a rôle which I believe would give us back what is very much needed in this country, our pride in the British heritage.
Let the Government say tonight, in words which will ring down the corridors of history, that in ratifying the Genocide Convention that is their aim, that that is their determination. I believe that if we do that we shall tonight be passing a Bill to fit in with the format of the United Nations. We shall be recovering some of the motive force which a nation needs, and we shall be doing something which is badly needed for a great mass of suffering humanity.
§ 8.17 p.m.
§ Mr. Edward Lyons (Bradford, East)
It is obviously a proud day for Britain that we are discussing this Bill. We must all give it a very warm welcome.
Only the other day I read an admirable essay, published by the Fabian Society, written by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer), who has spoken so well this evening. In that essay, talking of genocide, he said that the countries which have ratified the Genocide Convention are those countries which are unlikely to commit genocide. One does not, of course, wish to suggest that those who have not ratified the Convention are likely to commit genocide. Indeed, as has been said, it has taken Britain 20 years to do so. How depressing it is that with so horrific a crime neither the Soviet Union nor the United States of America, the two most powerful countries in the world, have found the time or the will to pass a four-clause Bill outlawing an offence as nasty, as savage, and as horrendous as this one.
If this Bill will cause countries such as those, the greatest in the world in terms of power, to rethink their attitudes to genocide and to its outlawing, it will have served a double purpose. Until the great powers of the world are prepared publicly to declare that genocide is a crime, and so to enact, many people all over the 497 world will continue to wonder, with some depression, what kind of world it is in which we live. May the Bill therefore be the forerunner, and the example, for another 50 ratifications so that the world is at one on this issue.
§ 8.20 p.m.
§ Mr. Peter Kirk (Saffron Walden)
My hon. Friend the Member for Ormskirk (Sir D. Glover) claimed, with some justice, to be the onlie begetter of this debate and the House should congratulate him on insisting that we discuss this important matter on the Floor of the House, rather than in a Second Reading Committee, where the significance of the act which we are taking would not have been fully appreciated. Although it may mean that the symbolic nature of the ratification during Human Rights Year has been lost, matters of this importance should, nevertheless, be discussed on the Floor of the House.
I speak with some diffidence, because I fully realise, as was implied by the noble Lord who introduced the Bill in the House of Lords, that any criticism, however mild, of the wording might be taken as criticism of the principle of the Bill. I wish to make it clear that my own feelings are wholeheartedly with the intention and desire of the Bill. It is absolutely right that we should do this and I am only sorry that we have not done it during the last 20 years.
My reservations do not stem, as did those of my hon. Friend the Member for Colchester (Mr. Buck), from Clause 2, which I think is a very good Clause. It is right that genocide should not be regarded as a political offence. It is, after all, murder, and no one has ever regarded murder as a political offence—
§ Mr. Kirk
Perhaps there are cases, but it is very unlikely that straight murder of this kind could be regarded as political.
On the retrospective element, about which I have some hesitation, we must reflect that, if we had insisted on the principle of no retrospection in the years immediately after the war, not a single Nazi murder would have been brought 498 to justice. So I am not worried about Clause 2.
What I am worried about is the wording of Article II of the Convention itself, that is, the Schedule. It may be a little late to bring this up—the Convention has been in effect, for those who have ratified it, for more than 20 years, after all—but it is worded in a way which I do not think any Parliamentary draftsman in this country or the House would tolerate for a moment when creating a new criminal offence. It says:… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such …It then lists the five ways in which this act can take place. The first is killing members of the group.
It depends on what one means by "in whole or in part" and also on the various qualifications of the group. But we know that things are going on, as my hon. Friend said, in the South Sudan and have been going on now for 10 years or more of the most horrific kind which must, I should have thought, qualify under this Bill. Yet, certainly up to a short time ago, Her Majesty's Government were selling arms to the Sudanese Government. Presumably in these circumstances, the question of complicity must come in at some stage. The wording is so vague that it is not absolutely clear where the responsibility can lie.
I am not suggesting that either this Government or their predecessor would ever recognise any complicity in genocide. All I am saying is that the thing is so loosely drafted that it could be claimed that, if the British Government supplied arms to the Sudanese Government, and the latter continued to carry out the acts which it has been carrying out, it is conceivable that the British Attorney-General could be required almost to prosecute himself.
Only just before Christmas, a distinguished journalist in The Spectator accused the British Government of complicity in genocide in the case of Biafra. I will not go into that—I do not happen to agree with it; I do not think that the Nigerian Government are embarking on genocide, although I do not agree with the British Government's policy in Nigeria—but there are problems. Because 499 the thing is so vague, it is almost impossible to see how a precise definition can be laid down in the terms of Article II describing exactly what this crime is. I am no lawyer, but if a case ever went to the courts under this Bill, judges might find themselves in very great difficulty in construing what it meant.
I appreciate the point that we are creating no new offence, that this is such a blanket provision that all the things contained in the Schedule are already offences under our laws. If so, there is no need for the Schedule. All we needed was a declamatory Bill simply saying that we ratify the Convention and will apply United Kingdom domestic law to any act relating to genocide. We should have needed Clause 2, but not Clause 1.
But I have my doubts about whether we may not be creating new offences which could be difficult to construe. For instance, paragraph (d) of the Schedule—Imposing measures intended to prevent births within the group"—is a very wide statement. With the best will in the world, I cannot see how it can fail to cover abortion, family planning and other things.
§ Mr. Elystan Morgan
It might be as well if we dealt with this matter now. I am sure that the hon. Member appreciates that the matters referred to in paragraphs (a) to (e) are, of course, governed by the preceding words "committed with intent to destroy". Therefore, the question of birth control or abortion would be relevant only if it were "with intent to destroy".
§ Mr. Kirk
I appreciate that, but the hon. Gentleman does not see my point. Any act of birth control or abortion is "with intent to destroy". What one has to prove under this is the intent to destroy a particular group. It could be claimed that—I am taking this as a very large claim simply to illustrate the point: I do not think that it is true—if one intends to enforce an Act legalising abortion on a nation which regarded abortion with abhorrence, that would be in tent to destroy a particular group. This is possible and comes within this wording, and there is danger here of loose drafting. 500 I have done a good deal of international drafting and know how difficult it is to get it right. I spent last week wrestling with a draft resolution on Greece. I think that we got it right. Most of it was drafted by me and it seems to have satisfied many people in this country, some of them, I must admit, rather surprisingly.
What we are doing is incorporating loose international drafting in United Kingdom law. We can do nothing about it, since the Convention has been in existence for 20 years, and we cannot possibly say that we want it amended. It might have been a good idea, when this country ratified the Convention, if it made a declaration setting out its understanding of precisely what it meant. This is not an unusual practice in international affairs, but one which makes clear beyond doubt precisely what it is that the Government are proposing to do and would have removed certain ambiguities which arise from the loose drafting of this Article.
I raise this only because I hope that we shall have many more Bills like this and that more and more such Conventions will come forward. One of the great things which this Government have done and which mine never did is to ratify the European Convention on Human Rights. That was a great step and one for which I pressed. We want more of these international Conventions to be ratified, but we must realise that many of them are badly drafted for the purposes of United Kingdom domestic law. If we are to make a practice of this it is necessary for Governments, when they ratify these matters, to declare in an annexe to their ratification precisely what they mean by it. If they do that, we shall avoid a great deal of trouble.
I regard this as a very important piece of legislation. I think it vital that it should go through and I certainly do not intend to oppose it in any way. I merely utter this word of warning.
§ 8.30 p.m.
§ Mr. David Waddington (Nelson and Colne)
I am sorry if I strike what some might think a somewhat discordant note. It does not mean that for a moment I am any less conscious than anyone else in this Chamber of the horrors perpetrated 501 in Nazi Germany, or indeed of the horrors perpetrated in the world since the end of the Second World War and which are still being perpetrated, but my first reaction when I read the Bill was that it was not particularly helpful, that it was highly unlikely to play any part in changing the course of history, that it was not particularly damaging, and therefore should not be opposed.
I was not very keen on any legislation which, to use the words of my hon. Friend the Member for Colchester (Mr. Buck), might be construed as propaganda, but I was prepared to let that pass because, although most of the Measure increases the powers of the English courts, it is highly unlikely that the English courts will ever have to deal with the crime of genocide. That is of the very obvious reason that it goes beyond the civilisation we have attained. Anyone who committed the crime of genocide as defined in the Convention in any event would be guilty of another crime already existing under English law.
I then began to look further and began to wonder why, although this Convention was approved as long ago as 1948 by the General Assembly of the United Nations, succeeding Governments, both of the Left and of the Right, had apparently refused to touch it with the proverbial barge-pole. It struck me as odd that it should have been left to this Administration, not in the first year of its life, to take this Convention out of the Foreign Office cellars, to take this aged document from where it had lain all these years, and try to put it into law. Surely it cannot be contended, and would not be contended by any hon. Member tonight, that it was some wickedness on the part of preceding Administrations both Labour and Conservative that had prevented this international Convention from being implemented in English law.
I looked very carefully and thought about this matter. I discovered, as I am sure every hon. Member in this Chamber must have discovered, that the reason why previous Governments have failed to implement this Convention is not because of shortage of time, for every Administration can find the few hours necessary to put through a Bill of this nature. It is because of Clause 2(2), 502 which was dealt with by my hon. Friend the Member for Colchester. It says:no offence which, if committed in the United Kingdom, would be punishable as an offence of genocide or as an attempt, conspiracy or incitement to commit such an offence shall be regarded as an offence of a political character, and no proceedings in respect of such an offence shall be regarded as a criminal matter of a political character.There are hon. Members who must have a very vivid recollection of the debates and discussions in 1963 over the case of Chief Enaharo. I was not here then, but I have read the various passages in HANSARD which dealt with that vexed case. Hon. Members on both sides of the House were desperately anxious lest the Chief, if returned to Nigeria, might not get a fair trial and might, in spite of all that was said in the affadavits placed before the English courts, have faced the death penalty.
Hon. Members, particularly on the Labour side of the House, now the Government side, pointed out how anomalous it was that if an application were made for the extradition of a Commonwealth citizen it could not be resisted on the ground that the offence charged was of a political character, whereas in the case of a foreigner it could be so resisted. The right hon. Member for Belper (Mr. George Brown) said in one of those debates:One of our traditions is that we do not send people from these shores when they are charged with political offences."—[OFFICIAL REPORT, 15th May, 1963; Vol. 677, c. 1437.]Not surprisingly, Labour Members promised—I compliment them on this—to remove the anomaly.
Section 4(1) of the Fugitive Offenders Act, 1967, states:A person shall not be returned under this Act to a designated Commonwealth country, or committed to or kept in custody for the purposes of such return, if it appears to the Secretary of State, to the court of committal or to the High Court or High Court of Justiciary on an application for habeas corpus or for review of the order of committal—I hope that the House realises that, whatever the Government are doing tonight, one thing they are certainly doing is altering to a material degree the effect of an Act which they commended to the 503 House only a short time ago. The Government are removing a part of the protection which they said it was necessary to give to citizens of the Common wealth—
- (a) that the offence of which that person is accused or was convicted is an offence of a political character ".
§ Mr. Elystan Morgan
I am sorry to stop the hon. Gentleman in the full flight of his oratory, but I hope that he appreciates that the exception is very limited in compass and applies only to the quite exceptional case of genocide and not to political offences in general.
§ Mr. Waddington
I appreciate that. I was about to deal with that matter. Although I appreciate that it is only one offence which is excluded from the effect of the Fugitive Offenders Act, 1967, my fears as to the possible effect of the Bill are not entirely fanciful. As was said in another place, applications for extradition on the ground of genocide are likely to be made, if ever, in the aftermath of a conflict, when bitterness is rife and when, if trumped-up charges are ever to be made, they are likely to be made.
We should not close our eyes to the fact that the definition of genocide in the Bill is very wide indeed, as my hon. Friend the Member for Saffron Walden (Mr. Kirk) said. It would not be difficult for a Government to allege genocide rather than simple murder against a fallen politician. The Convention to which the Bill gives effect defines "genocide" as killing members of a racial group "with intent to destroy" that group "in whole or in part".
I am taking into consideration, not (a), (b), (c), (d) and (e), but the controlling passage at the beginning.
Has not that been the unfortunate essence of almost every conflict in Africa in recent years—in the Sudan, Nigeria, the Congo? Every time in the background there has been a racial conflict. Not long ago it was suggested in the Lords that our extradition machinery is such that there is virtually no risk of a person being extradited who has not committed genocide. That is probably the Under-Secretary's case tonight. If it is not, then we could not allow the Bill to become law. My hon. Friend the Member for Colchester said that he did not think that there was any real risk of a person being extradited who had 504 not committed genocide. I am not certain about that and I hope, therefore, that the Under-Secretary will deal with the matter in detail.
If one considers the matter one sees that the applicant Government must merely put in an affidavit and make out a prima facie case. It is no part of extradition proceedings in this country that the applicant Government must prove beyond reasonable doubt that the person has committed genocide. The procedure laid down involves the placing of affidavits before the court; and if a prima facie case is made out that the crime of genocide has been committed, then the person is liable to extradition.
Bearing this in mind, I need only return to the definition of genocide which I gave. It is one of many definitions, but the one I quoted states:In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religous group…I hope that the Under-Secretary will reassure us on this point. I reiterate that in extradition proceedings in this country the offence need not necessarily be proved. The applicant Government need only put documents before the court and, through those documents, make out a prima facie case.
I have no objection to people expressing their horror at genocide. I hope that I shall do precisely that on many other occasions. I am disturbed lest, almost by a side wind, Parliament should be granting a licence to unscrupulous Governments to pursue their political enemies to this country.
§ 8.43 p.m.
§ Mr. Elystan Morgan
With the leave of the House, I will speak again, if only to deal with the points which I have been asked to mention. As expected, no hon. Member has evinced any fundamental objection to the Bill. The speeches have been fair, substantial and constructive and I was glad that the hon. Member for Colchester (Mr. Buck), speaking for the Opposition, was with the Government on the main provisions of the Measure.
The hon. Member for Colchester asked about the number of applications for extradition. Between 1964 and 1967, inclusive, 40 applications were made, of which 20 were refused or abandoned. If 505 the hon. Gentleman wishes me to give the figures for the individual years during that period I will do so.
Like his hon. Friend the Member for Nelson and Colne (Mr. Waddington), the hon. Member for Colchester dwelt on the fundamental change that is made in extradition law in relation to a political offence, as it is described, but not defined, in the Extradition Act, 1870 and the Fugitive Offenders Act, 1967.
The hon. Member for Colchester, as I understood him, said that he was rather unhappy that we should have departed from the principle set out in Article VII of the European Convention on Human Rights. There is no such departure. The ideal is set out clearly but, in that Article itself, there is an escape clause, a specific exemption being made with regard to acts which are… criminal according to the general principles of law recognised by civilised nations.This is the point which the hon. Member for Nelson and Colne articulated.
I do not think that the hon. Member for Nelson and Colne would go so far as to say that a political offence should still be regarded as a reason for not extraditing a person who is charged with genocide. The difference between us, therefore, is whether or not there are sufficient safeguards and whether the situation is properly defined. This is no doubt a matter we can pursue in Committee but, at this stage, I assure the hon. Gentleman that I am convinced that the safeguard that the State making the request for extradition should show a prima facie case, substantiating its claim that the person concerned has committed genocide, is sufficient and adequate.
To ask for less would mean that the situation would be open to abuse. To argue for more would mean the restructuring of an important and fundamental part of extradition law. I am sure that the hon. Member for Nelson and Colne would agree with the hon. Member for Colchester, who said that persons sitting in judgment on these matters attach very great importance to the strictest application of the rules under the relevant sections of the Acts we have mentioned. The same is true of the Backing of Warrants (Republic of Ireland) Act, 1965.
506 This is a judicial procedure. It is not and cannot be a trial. Therefore, questions of proof beyond all reasonable doubt cannot arise and one must think of a standard that is lower than that but is adequate in the circumstances. I maintain that the standard of a prima facie case is reasonable. It is the sort of standard one would have in a successful committal to a higher court in our own domestic law.
My hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) hoped that the Government would do all they could to contribute towards the establishment of an international criminal court. I am sure that every hon. Member applauds such an ideal and endorses his hope. Of course there are difficulties. To a large extent, the setting up of such a body turns on a system of world order and a jurisdiction that is international. This is not merely a question of setting up courts alone. I am sure that he remembers the words of the distinguished jurist John Austin, who said that the test of law was the fear of punishment. That presupposes a jurisdiction and a sanction. In addition, of course, there are numerous technical difficulties which we must bear in mind.
§ Mr. Archer
My hon. Friend would accept that the International Court of Justice is functioning, if not to everyone's satisfaction, at least effectively in certain areas, and it has not so far shown a notorious lack of sanctions.
§ Mr. Morgan
The question of a sanction in relation to a civil jurisdiction cannot be compared with the question of sanction in relation to a criminal court. My hon. Friend will have in mind certain cases where judgments were given over 20 years ago and have still not been satisfied. I take his point, however, and I am sure that we are as one in our aspirations in this respect.
The hon. Member for Ormskirk (Sir D. Glover), whose record of humanitarian work we all respect and admire, and of whose compassion for the downtrodden and persecuted we are well aware, as usual made a very interesting contribution to the debate, and, as usual with his experience and expertise, he was able to broaden the basis of the debate a 507 little. He put many temptations to wander into by-ways into my path, but I shall try to resist them. When he mentioned Hereward the Wake, I wondered whether it would be appropriate for me to mention Edward I in relation to my own nation. That gentleman also revelled in the title of Maleus Scotorum, but that was a long time ago.
The hon. Gentleman raised questions relating to the Sudan, the Amerindians, the Naga tribesmen and so on. I know that he accepts that the real answer is that we have no locus standi in relation to any of those situations.
I agree with him, as I am sure every hon. Member does, that Britain has perhaps a special rôle that it can play in the world in giving leadership in the suppression of such atrocities. I am sure that, at any rate to some degree, the passing of the Bill will enable us to travel a little further along that road.
The hon. Gentleman mentioned slavery. It would be proper to seek to contradict the impression he has given that the Government have no intention of taking action to attain the ends envisaged in the Convention in this respect. The Bill is action of this sort, designed as it is to permit the United Kingdom to accede to the Convention, which we shall do as soon as we can. The hon. Gentleman is aware that the United Kingdom is a party to the two international Conventions dealing with slavery. I agree that the position internationally regarding their implementation is disappointing, but it is not the United Kingdom that is responsible for this situation. The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities debated a resolution introduced by the British member at its last session, appointing a rapporteur to study this subject.
The hon. Member for Saffron Walden (Mr. Kirk) has commented on that part of Article III in the Convention which mentions among the acts which shall be punishable as genocide, under the letter (e), complicity in genocide. Complicity in genocide has not been included in Clause 2(1). The reason for this is that we take the view that that sub-heading in Article III is subsumed in the act of genocide itself in exactly the same way as, under our domestic criminal law, 508 aiding and abetting is a situation in which a person so charged could be charged as a principal in relation to the offence itself.
The hon. Member went on to say that he had great reservations about the drafting of Article II of the Convention, which is reproduced in the Schedule. I do not share his fears. He quoted the case of abortion or birth control and said that that would come within one of the headings listed in the Schedule. As I pointed out in my intervention, that could only be in a situation in which it took place with intentto destroy, in whole or in part, a national ethnical, racial or religious group…
§ Mr. Morgan
If there were a situation in which there were a system which made abortion or birth control compulsory with a view to destroying a part of the population, not limiting the growth of the population, but making it impossible for a part of that population to reproduce itself, I agree that that would probably be a case of genocide.
The hon. Gentleman also instanced a nation which did not believe in abortion, but which had legislation which made abortion compulsory. That, of course, would be an act of tyranny upon that nation and if such a law were passed with intent to destroy in whole or in part that nation, it would be clearly genocide. We would then be dealing not with abortion as such, or with birth control as such, but with tyranny, with genocide as defined in the Bill.
§ Mr. Morgan
I shall not be drawn into an argument about forced sterilisation in India, but the question which has to be 509 asked is whether it is done in order to limit the population, whether we believe in that or not, or with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
It would not be appropriate to pursue that matter further at this stage. Not one word has been said in this debate, happily, to suggest that there is anyone in this House who would not wish to see this Bill given a Second Reading. I invite the House so to allow it to go on its way.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).