§ 2.40 p.m.
§ THE EARL OF SELBORNE rose to call attention to the plight of political refugees who have been turned back by frontier guards from crossing into the British Zones of Germany and Austria, or who have been handed back to totalitarian Powers on the plea that they are war criminals, collaborators or quislings; and to move for Papers. The noble Earl said: My Lords, I rise to move the Motion which stands in my name. There is profound uneasiness among people of all political opinions in this country at the fate of the refugees who have escaped from Communist powers and are now in the British Zones of Austria and Germany. Evidence of this anxiety can be found in the numerous questions which have recently been addressed to His Majesty's Government in another place, and in the 1155 many letters on the subject which have appeared in the Press.
§ These refugees can be divided into three categories. First there are refugees who are accused of war crimes and collaboration with the enemy during the war. The second category consists of the refugees who are coming across the frontiers almost every day from Communist-controlled Powers and seeking refuge in the British and American Zones. The third category is composed of those refugees already inside our Zones but who are liable to be sent back to Communist-controlled countries for offences which they may have committed in our Zones—offences sometimes of a comparatively trifling nature—such as black marketing offences. Take the first category, the men and women who are accused of war crimes and of collaboration with the enemy. His Majesty's Government are detaining a number of these people, nearly all of them, I believe, Yugoslavs. I think I am right in saying that the Government are detaining over one hundred persons with a view to their being deported to Yugoslavia and other Communist-controlled countries. I should be much obliged if the noble Lord who is to reply for the Government could give the House exact figures in that respect. But although the majority of these people are Yugoslavs, the principle is one of universal application, and it is the question of principle that I wish to raise this afternoon.
§ This question cannot be considered without its background, and the background is not a simple one; it is complicated. At the conclusion of the war, the Allies undertook to hand back to each other war criminals and collaborators and also certain displaced nationals against whom no crime was alleged. In 1945 many thousands of Russian, Polish, and Yugoslav subjects were handed back to their Governments. But before many months had passed irrefutable evidence reached the British and American authorities that these people were simply being massacred wholesale, and in many cases tortured to death. So in 1945, within a few months of the Armistice, Lord Alexander stopped the automatic transference of nationals to Yugoslavia on account of the terrible information that was reaching him. But His 1156 Majesty's Government still consider themselves bound by the Agreement that they made in 1945 and they have been giving effect to it. They have even gone further and made a new Agreement with Yugoslavia at Bled in 1947. That Agreement has since been repudiated by the Yugoslav Government, and I should very much like to know whether His Majesty's Government consider themselves bound by it.
§ When this matter was raised in another place, the spokesman of the Government said more than once that before any persons accused of war crimes or of collaboration with the enemy are sent back to Communist-controlled countries, the greatest possible trouble is taken on our side to satisfy ourselves that there is a prima facie case against them. I do not think that a prima facie case is good enough. We should satisfy ourselves that they are guilty beyond all doubt. How can this be done? How can we really establish a man's innocence or guilt unless he has an open trial and unless he is able to summon witnesses? A secret inquiry, an inquiry by a committee or by an officer even of long experience, cannot possibly have the same result, if only because there is no publicity. It is the publicity of our judicial system that is one of the greatest guarantees of its justice, and if we suppress that publicity and substitute a private inquiry, then we are, or may be, robbing the accused person of the means of getting people who can testify on his behalf. And even if he has people who can testify, how is he to get their attendance from a Communist-controlled country? I understand that quite recently in one case—I had better not mention names—it had been decided that an individual was to be handed back to a Communist-controlled country because His Majesty's Government were satisfied about his war guilt, but at the very last minute additional information was received which caused them to rescind their decision. If that can happen in one case, it can happen in other cases. I submit that that goes to support my contention that you cannot be certain of a man's innocence or guilt except by process of open trial.
§ I want, however, to approach the whole question on wider grounds. Have we not really had enough slaughter in Europe? How long are these inquisitions going to 1157 continue? Our so-called contractual obligations, by which His Majesty's Government still appear to think they are bound, were concluded in totally different circumstances from those that exist to-day. There is this further question. How can you define "collaboration with the enemy"? It is an exceedingly difficult thing to do, especially in the complicated circumstances that existed in the Balkans. I had some personal experience of that matter during the war, because for a period I was the Minister responsible for sustaining the resistance movements, and I can give your Lordships two instances of the sort of thing which was happening all over Europe every day. The chief air raid warden in a capital occupied by the Germans, the man entrusted by the German Government with mobilising civil defence against British air raids, was, in fact, the head of the resistance movement. He occupied that dual capacity for over three years without ever being found out. Was that man guilty of collaboration? No Englishman would say so, but it would be possible for a Communist to argue that he collaborated with the enemy.
§ Then there was the case of a man who was thought by his own fellow countrymen to be one of the chief collaborators with the enemy, whereas the facts were that for over two years he was supplying the local funds by which the resistance movement was carried on. The people who helped us in many cases had to take action which would disarm the suspicion of the enemy, and that happened in greater or lesser degree in thousands and thousands of cases in the different countries of Europe. If we were to accept Tito's definition of collaboration, we would condemn to death practically all the men who helped us in the coup d'état of 1941, when we stopped the German infiltration into Belgrade. Therefore, I say that the charge of collaboration, especially when preferred at this date, is a very difficult one to establish. As I asked just now, when is a time limit going to be put to these inquisitions? Europe must settle down. We cannot continue this witch hunting for ever.
§ I want to put this point to His Majesty's Government, and I hope they will not misunderstand me in the way I am trying to put it. They themselves have protested—and quite rightly pro- 1158 tested—in the strongest terms against the mock trials that have taken place in Communist-controlled countries, whereby one great democratic leader after another has been liquidated. Nobody has protested more strongly against that than His Majesty's Government. I do not want to be misunderstood, but I would ask this question: Were His Majesty's Government sincere in making that protest? If they were, have not these travesties of justice freed their hand? Which is the greater, the shadow or the substance? How are we to hold ourselves bound by the letter of contracts, when the spirit of those contracts has been repudiated and trampled upon by the other side? I submit that the very action of these Governments has absolved His Majesty's Government from the letter of their contractual obligations. I cite, as evidence, their own protests against the terrible crimes committed in these countries. By these protests they have proclaimed that it must be recognised that all chance of fair play, of a fair trial and of justice, has been abolished from these lands. If that is so, is not the procedure of handing individuals over, under an Agreement that was made three years ago, when most of these Eastern European countries were not Communist-controlled, a ghastly mockery of legalism?
§ It is surely better that a hundred guilty men should escape than that one innocent men should be sent to a fate of this nature. Therefore, I urge that henceforth no person should be delivered from our hands to Communist-controlled Governments. We know that a fair trial is not possible in those countries. The war record of this; country is above suspicion. We need not be afraid of being accused of harbouring war criminals and collaborators, for other Governments were collaborating with the enemy while we alone held up the flag of freedom. We can afford to treat with contempt any attacks that may be made on us on that score. Our record entitles us to do the right and just thing, and the right and just thing is not to hand people over to barbarism.
§ I would ask His Majesty's Government another question. What is the attitude in this matter of other Allies who are also parties to these Agreements? Can the noble Lord tell me, for instance, whether the American Government have handled over a single individual to a Communist- 1159 controlled Government in the last twelve months? I would like to see this country taking the line that, so long as the elements of human rights are denied by Communism, and so long as the possibility of a fair trial is closed to him, we will hand no man over. Such an attitude could not make our relations with the Communist Governments worse than they are to-day, because nothing could make them worse.
§ These considerations which I have argued, I am afraid, at considerable length, apply also to the refugees from Communism who are coming across the frontier every day. I have heard of a number of cases. I should be grateful if the noble Lord could give us the facts. There is, first, the case of General Janousek, who occupied a high position In the Czech Air Force in this country during the war. He was turned back at the frontier by a German customs official when he was trying to get into the American Zone. He was handed back to the Czech Communist Government. As a result, he was sentenced to death, although the sentence was commuted to eighteen years' imprisonment. Personally I would have preferred the former sentence. Last year, I am told, many Yugoslavs who fled to the British Zone were turned back. I should be obliged if the noble Lord could give us the latest information on this subject and, in particular, if he could tell us what instructions have been issued to the German frontier guards and customs officials. In my submission, they ought to have instructions not to hand back any person without express orders from the British military authorities.
§ The same considerations apply to those refugees in our Zone who may commit black market offences, or, indeed, any other offence. I hope His Majesty's Government will be very careful about sending back any such refugees to their country. If they are sent back, they will not be tried for the crime for which we have sent them out of the country, but will be tried on the capital charge of being absent from Yugoslavia, from Czechoslovakia, or from whatever country it may be. That means the death penalty. I submit that, even in the case of these people—for whom I admit it is difficult to find sympathy—the punishment would 1160 in many cases be quite disproportionate to the crime. Therefore, I hope that His Majesty's Government will not send people back, except under very exceptional circumstances. The point of my plea is that the Government are acting as if this were an ordinary Agreement, undertaken in 1945 with normal Governments. We really cannot continue on that basis. We must recognise the fact that the countries now under Communism are suffering under a form of tyranny the like of which Europe has not seen since the Dark Ages.
§ His Majesty's Government must adjust their policy to the facts; they must be realistic about the situation. As I have said before, we have a war record which entitles us to do the right and the just thing. I hope we shall hear from His Majesty's Government a statement that so long as these travesties of justice, these mock trials, continue in Communist-controlled countries they will not be a party to sending anybody for so-called trial in them, and will not deny asylum to any political refugee. I hope very much that the noble Lord will be able to make a statement on those lines. I beg to move for Papers.
§ 3.20 p.m.
THE EARL OF PERTH
My Lords, I should like to say a few words in support of the noble Earl who has moved this Motion. I shall be as brief as possible because of the very important debate to follow, upon which many noble Lords wish to speak. Those who have studied this Motion find that, taken literally, it is rather curiously worded, in that it refers only to the past. The past is past, and we can do nothing to remedy what has happened. It may well be that the policy of His Majesty's Government has had certain unhappy results, but personally I am convinced that His Majesty's Government have acted in the fullest good faith and that they have done what they believed was best in the circumstances. Therefore, I do not intend to criticise in any way their past actions or their policy. But in this particular case the future lies entirely in our own hands, and it is to the future that I wish to address the few observations that I have to make.
The Motion raises two quite distinct issues. The first is the turning back by frontier guards of political refugees who 1161 endeavour to cross into the British Zones of Germany and Austria from neighbouring totalitarian countries. The plight of these poor people is really terrible. It cannot be supposed that they desire to leave their country, and often their families and their possessions, just for the sake of change. No; they depart because they are in terror of their lives; because they hear the imminent knock at the door and they know what that means. I realise, of course, that there are grave administrative difficulties in admitting a very large number of these unhappy people at the same time. We have already great numbers of displaced persons in our Zones in Austria and in Germany. I also realise that the natural inclination of those who are responsible for the administration of the Zones is to say: "We do not want to add to the present numbers" I earnestly hope, however, that His Majesty's Government will be guided by higher and more humane considerations, and that they will give definite instructions that these political refugees shall be allowed to cross the frontier where they can obtain safety. Of course, after their arrival, they might be screened, and if there were criminals among them they could, in exceptional circumstances, be handed back. But I feel most strongly that no genuine political refugee should be refused asylum. I trust, therefore, that we may receive assurances from His Majesty's Government that they are ready to adopt this line. In this connection, I wonder whether your Lordships have noticed that the American Government and Congress have just voted a sum of 73,000,000 dollars to help the International Refugee Organisation. That is a most generous contribution, and will greatly contribute to solving that terrible problem. I think all of us who care about refugees would like to take this opportunity of expressing our gratitude.
I now pass to the second point, the handing back to the totalitarian Powers of refugees, on the plea that they are war criminals, collaborators or quislings. Here a very grave responsibility must rest upon His Majesty's Government, because there is little doubt that, if an individual is handed over on those charges, his life is forfeited. I gather from the answers given in another place that we are likely to be told that His Majesty's Government 1162 have undertaken certain international obligations in this respect, and that we are bound to fulfil them; and, secondly, that no one is handed back unless a strong Prima facie case has been established against him. I agree with the noble Earl who moved this Motion that that is insufficient. First of all, I would like to deal with the argument about our international obligations. If I remember rightly, the doctrine which holds good in international law may be defined as rebus sic stantibus; that is to say, when an Agreement is concluded, it is concluded to meet a given set of circumstances. If those circumstances entirely alter, then the Agreement or Treaty cannot be considered as fully binding. I agree that that is a dangerous doctrine if pressed to extremes, because it tends to undermine the sanctity of Agreements and Treaties. In my view, Agreements and Treaties ought to be altered only with the consent of the signatory Powers. If ever there was a case where that doctrine can be applied, it is the one we are now considering.
As the noble Earl pointed out, when we concluded those Agreements we believed that the persons handed over would have a fair judicial trial. Can any of your Lordships believe that to be the case today Handing over is equivalent to a sentence of death. We know, unhappily, what is this so-called justice in totalitarian countries. When I think of the judicial procedure there, I cannot help being reminded of the tale of the mouse and the cat, Fury, in Alice in Wonderland. Your Lordships probably remember that the cat wished to prosecute the mouse, and the mouse protested that there was no judge and no jury, and, therefore, there could be no prosecution. I will quote the last lines:I'll be judge, I'll be jury,Said cunning old Fury:I'll try the whole cause,And condemn you to death.It is true that this case is far too tragic for Lewis Carroll. In conclusion, I should like to press the Government that they will not hand over people unless they are convinced themselves, by evidence produced and by interrogation, that such people would have been guilty of treason if tried in a British court. That, and nothing else, to my mind, ought to be the criterion.
1163 Before I sit down, I should like to express my appreciation of the fact that the Government spokesman on this occasion is to be the noble Lord, Lord Henderson. I am fortunate enough to have been a friend of his father, a great Foreign Secretary who was much admired and respected in international circles as a representative and typical Englishman. He would be proud if he knew that his son to-day was responsible for answering questions on foreign affairs in your Lordships' House.
§ 3.12 p.m.
§ LORD VANSITTART
My Lords, I should like to support this Motion, briefly but warmly. There used to be words embedded in our vocabulary about "handing people over to justice." I hope that that cliché will never be perverted, even by accident. It would be a mockery if we were to begin to hand people over to injustice. I hope, also, that it is generally realised in your Lordships' House and in the country that in Totalitaria, just as people are deprived of their liberty so words are deprived of their meaning—particularly the abstract ones, though some of the concrete ones fare little better. I, for one, am beginning to be exceedingly doubtful whether a spade is a spade. Mono Party is "democracy"; Socialist and peasant leaders are "Fascists"; liberators are "oppressors"; and vice versa. But the point of importance for us to-day is that that is only half the story, because just as people are driven into forced labour so words are forced into the opposite of their exact meaning. Again, as truth is "propaganda" and terrorism "tolerance," so "justice" is the people's court, which is the ventriloquist's dummy of the secret police and therefore may well be the embodiment of injustice. Many notorious cases justify that statement.
It may be that there are some of these refugees seeking admission who are guilty of heinous crimes to our knowledge—not, of course, to the knowledge of Totalitaria, where "knowledge" means prejudice. But even then these cases are open to all the difficulties and objections which have been mentioned by the noble Earl who moved this Motion. There can be no justification whatever for handing over any borderline or doubtful 1164 cases to Totalitaria.—where, we are frequently reminded, man can be that very rare being, a mammal who preys on his own kind.
Therefore I hope we shall be in no wise hidebound by convention in these matters. We really must free ourselves from mesmeric fears that we might be failing in some portion of our obligation to those who never fulfil any of their obligations to us, great or small. In any case, no convention on God's earth could possibly justify the refusal of salvation to those who run for their lives with the hounds of fanaticism at their heels. I am told that some of the noble Lords on my left advocate the suppression of blood sports. Well, I do not happen to practise blood sports myself, but it may well be that one man's meat—even when spelt with two e's—is another man's poison; yet blood sports in this country are relatively mild proceedings compared with the blood sport of politics as practised in Totalitaria. There may be noble Lords who are better qualified to speak than I am, but I am told that the fox has a fifty-fifty chance of escape; in the human blood sports of Totalitaria, it is a capital offence even to try to escape. I imagine that if anyone were to suggest handing over doubtful cases to Franco there would be an awful outcry; and I hope that no such thing would ever be considered. In that case, there can be no question of handing over doubtful cases to Tito, because nothing can be more insincere than to endeavour to distinguish between dictators or put a gloss on the jack-boot because it happens to fit the left foot.
I believe, very earnestly, that the crisis, and indeed the collapse, of civilisation has resulted in the virtual extermination of justice and indeed of human kindness in wide areas of the world. We cannot, therefore, be too careful in doing all in our power to preserve the remnants in the narrowing regions where they still survive.
§ 3.16 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, the House is indebted to the noble Earl who introduced this Motion. We have a longstanding tradition as a people never to refuse sanctuary to refugees who come to our shores on religious or political grounds; and I echo the words of the noble Lord, Lord Vansittart, in his plea for justice and human 1165 kindness. The noble Earl spoke of political refugees from two points of view: first, those who try to escape a tyrant rule being turned back at the frontier by our own servants; and, secondly, those living temporarily under a free Government being handed back to tyranny. The gravity of the noble Earl's complaint lies in the fact that the servants of the British Government find themselves the unwilling agents of a totalitarian tyranny. It is something quite new in British history that we should be required to deliver over to another country foreigners resident in an area for which we are responsible, not because they are criminals or murderers but simply because they are politically obnoxious to that foreign Government. I had much to do, in past years, with political refugees and I know something of the plight of those turned back on the frontier. I pity the guards who have to perform this miserable task, and I pity still more the victims of the Tito tyranny, the Dimitrov tyranny and the Stalin tyranny. I strongly support the plea of the noble Earl, Lord Perth, that we should give asylum to those who can make their way into territory where the British flag flies.
But I wish to speak more particularly of those under British rule whose surrender is sought by totalitarian Governments. There are two principal reasons on which I base my objection. The first is that, as I understand it, up to (I think) 1945 it was wrong in international law, and wrong in relation to the principles of British justice, to require the delivery of political refugees as such to a foreign Government. Extradition is not the right word for these transactions. In English law, extradition implies a public hearing before an independent magistrate, who must satisfy himself, first, that there is a strong prima facie case and, secondly, that the motive is not political. I should like to read to your Lordships the relevant, paragraph in Halsbury's Laws of England:A fugitive criminal may not be surrendered if the offence for which his extradition is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the Court before whom he is brought on habeas corpus or the Secretary of State that the requisition for his surrender has in fact been made with a view to try to punish him for an offence of a political characterThe review boards which have been lately introduced give a little more in the way 1166 of investigation than was given till recently. But there is still little, if any, publicity. That is the main complaint—that the whole business is political and not judicial.
It is fair to remark that hitherto extradition Treaties have been made only with those States where we had good reason to expect sound standards of law and justice; and political offences have always been excepted. I know that in recent months the procedure for surrender has been greatly improved, in the interests of the accused persons. I know and recognise the keen personal interest of General Robertson in this matter, and the considerate conduct which his officials display. It is something to be assured that no one will be surrendered unless, after full particulars of the charge have been given to the accused person, there is reason to suppose that conviction would follow if he came before a British court. But the policy is wrong. If the offence is a political offence, in the ordinary meaning of the word, it is inconsistent with the general habit of British justice to surrender a political refugee. If the offence is not political—as in the case of a war crime—then it is too late, three years after the end of the Second World War, to surrender such people now to totalitarian Powers.
The second principal ground for objecting to the delivery of such accused persons to totalitarian Governments concerns war crimes themselves and the procedure for the prosecution of war criminals. Two fundamental principles of international law, as understood till recent years, have been violated by the legal structure set up for the trials of war criminals at Nuremburg. First, it is not disputed that the law under which the accused persons are charged is a law enacted long after many of the acts specified in the indictment were committed. Nulla pœna sine lege is the basis of law in this regard. The whole Charter is a detailed statement, of crimes committed, but the crimes as set out in the Charter—some of them for the first time—are crimes set out and published after the close of the Second World War. There was an extreme illustration of legislation after the event in the deletion, in April, 1942, of Article 443 in Chapter XIV of the British Manual of Military Law, the effect of which was that superior orders constitute a good 1167 defence to a charge of war crimes. This defence counted in the Leipzig trials at the end of the First World War, but is not allowed now. The second fundamental—
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
I do not wish to interrupt the right reverend Prelate, but he is making this assertion as though these facts were agreed. Is he not aware that what he is now dealing with is a highly controversial legal matter? I personally disagree with almost every word he has said.
THE LORD BISHOP OF CHICHESTER
I am sorry to differ from the noble and learned Viscount on the Woolsack but I am quoting high legal authority.
THE LORD BISHOP OF CHICHESTER
There are fundamental principles of international law which have hitherto been current, and there is another principle of international law on which I do not think we shall disagree—namely, the principle of impartiality. I am sure that the noble and learned Viscount on the Woolsack will not differ here. There is no attempt to deal with war crimes committed by totalitarian Powers, and the Judges do not include Judges from neutral countries. The argument will be made—indeed it has been made, and has to be answered—that the British Government are bound by special Treaties or by special Agreement to deliver such accused persons to other Allied Governments on their demand, just as those Governments are bound by similar Treaties to deliver persons similarly accused to us on our demand. I do not want the guilty to go scot-free but, like the noble Earl who opened this debate, I maintain that a time limit should be fixed for dealing with war criminals of every category. In another place it was stated that in the British Zone of Germany 100 persons are detained as war criminals, for whom extradition is asked. Have they all received particulars of the charges made against them? I suggest that a date should be fixed, not only for them but for all war criminals in our hands, by which a charge must be laid, and that should a charge not be laid toy that date they should be set free.
1168 As to the extradition of war criminals and others affected, General Robertson stated on June 1 that he wished to receive applications for extradition by September 1, and that after that date only extraditions of persons accused of murder, as defined in the German penal code, could be applied for. That is something achieved which we must all gratefully acknowledge, but I hope the Government will go further. With others who have spoken, I hope that there may be no extraditions at all, and that there may be no requests made by us (I have not heard that any have been made) to other Governments for extraditions to our shores. It is now three years after the end of the Second World War, and more than two and a half years after the beginning of the Nuremberg trials.
I have not said anything about the injustice of the judicial procedure practised in totalitarian States. There is only too great a likelihood of the fugitive, after surrender, being victimised for offences other than those with which he was charged. And here would be another offence against the principles of extradition law. Most Communist rulers have committed, and many are committing, war crimes of the greatest severity and violence. The application for the extradition of a war criminal is a mere pretence; the real aim of the Communist Powers is the extermination of their political opponents; and in the world as it is constituted to-day, men can commit any crime they like, so long as they have the power. My plea in relation to political refugees, and all other persons in their situation, is that this country should give a lead in the reaffirmation of law as superior to power, and for the reawakening of Shakespeare's belief in the unstrained "quality of mercy." Heaven knows that the world is tormented and shattered enough, and that cruelty and hatred have had their way too long! We cannot rebuild waste places only by looking back. There must be a joining together of the forces of all nations for the work of reconciliation and healing. There must be a spirit of firmness but also a spirit of compassion. For the sake of future justice and future freedom, let our country give a lead in showing faith in the sovereignty of law and in the potency of mercy whichdroppeth, as the gentle rain from Heaven.
§ 3.33 p.m.
§ THE EARL OF HALIFAX
My Lords, I do not think it is necessary to add much—or indeed that there is much to add—either to the argument or to the clarification of the point that is occupying your Lordships this afternoon, because the case has been admirably made by my noble friend who moved this Motion and by other noble Lords who have supported it. Indeed, I rise to add a word or two only for the satisfaction of my own conscience. Along, I doubt not, with others of your Lordships, I am extremely grateful to the noble Earl for having brought this matter again before this House, and I cannot but think that the case that has been deployed is one that must, on general principles, appeal to all your Lordships. I do not doubt that it also appeals to the members of His Majesty's Government. I can, however, appreciate what is, and has no doubt been, their difficulty—the noble Earl, Lord Perth, alluded to it—in that they have felt themselves, and indeed rightly feel themselves, bound to have regard to the obligations of international Agreements, and the like. After all, the war that we fought recently was largely fought to try to re-establish that principle, and it is certainly not one lightly to be disregarded.
However, I want to make one suggestion to the noble Lord who will reply and to others of your Lordships who may think it has any validity. It is this. There are, so far as I know, only two methods short of force by which you can secure that honour is paid to Agreements—and, with the noble Earl who moved this Motion, by Agreements I do not merely mean the letter of Agreements, I mean the spirit of Agreements. The first method is to observe those Agreements so honourably yourself that you shame other people into observing them too. That is the method which we have been trying and, as my noble friend Lord Vansittart I think reminded us, up to now it has not been eminently successful. Therefore I suggest that the time has come in which we must discard that method of securing the mutual honouring of Agreements for the other method, and make it perfectly plain to those with whom we are dealing that if the spirit of Agreements is to be kept it must be a two-way traffic, and cannot be unilateral only. 1170 That leads me to the thought that, without any deviation from their general principle, the Government could very well now adopt the line that has been pressed upon them by those who have spoken on this Motion. For that the voice of general justice, the voice of human rights, the voice to which the noble Earl referred, crying out against the mass destruction of human life in Europe, pleads; and I cannot but think that the case is really unanswerable. It may well be that the Government will say—and indeed I think they will be justified in saying—that they must exercise the right of discrimination on whatever principles seem best calculated to enable them to pursue the general end. That there must be discrimination I recognise; but I would ask the Government to have regard to what I doubt not is the general feeling of the majority of your Lordships. I would appeal to them so to frame their policy that in the discrimination that they may feel bound to make they will have regard to the general sentiment dictated both by argument and, as it seems to me, by justice.
§ 3.38 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I would like very briefly to support what has been said by other speakers. As the noble Earl, Lord Halifax, has just observed, so admirable is the case that has already been made that there is little I can add. So far as that portion of the Motion which deals with the turning back of political refugees who are trying to leave totalitarian countries is concerned, I need only say—and I am sure I speak for everyone on these Benches—that it has been a profound shock to me to know that such a thing is actually happening at the present time. The right of asylum for political refugees has always been, or has been at least for a great many years, one of our proudest boasts; it is the definite, concrete evidence of the genuineness of our devotion and adherence to free institutions. To deny such asylum, to push back, for whatever reason, to prison and to death those whose only crime is a political one—and in this particular case whose only crime is that they think as we do about freedom—seems to me a dreadful thing. I hope that such a practice (if indeed it exists, because I speak from no personal knowledge), will not be allowed to continue.
§ THE EARL OF SELBORNE
May I interrupt the noble Marquess? I hope I have not given him and others of your Lordships the impression that I am accusing His Majesty's Government of giving instructions to the frontier guards that they should do this, but I have information that frontier guards have, in fact, done it. My question was: What steps are the Government taking to stop it?
§ THE MARQUESS OF SALISBURY
I do not wish to make any such charge against the Government; I am sure it would be contrary to the whole sentiment of us all, in whatever part of the House we sit. The portion of the Motion about which I wish to say one word relates mainly to that which deals with the handing over of war criminals to the tender mercies of the totalitarian Governments. The noble Earl, Lord Selborne, has already spoken to your Lordships—and you all know it only too well—of the dreadful fate that awaits those people who are returned to countries behind the Iron Curtain. Political refugees, in any case, one would have thought, ought not to be returned. There is, it may well be thought, a stronger case with regard to war criminals, because as everyone knows, an agreement was reached at the end of the war, and no-one wishes genuine war criminals to escape the penalty of their crimes. I am sure that that is not the purpose which the noble Earl has in mind. But it seems to me that, if we are handing these people back, we have a vital and definite interest to be certain not only that they would be likely to be convicted under British law, but that they will, at any rate, have a fair trial in the country to which they go, and will receive that sort of treatment which they would be given in any civilised land.
The noble Lord, Lord Vansittart, has spoken of blood sports. What about the question of capital punishment? Only lately we have had evidence that certain sections of the population in this country for the highest reasons, reasons of high conscience, cannot make it accord with their beliefs that capital punishment should exist here, in any form whatever. Over the necessity for capital punishment, of course, varying views are held; and they are held with great sincerity. But I should hope we all agree that unnecessary cruelty should be avoided, and that the highest standard of justice in trying 1172 these people is necessary. I would have imagined that to be the very essence of civilised life. As the noble Earl, Lord Selborne, has said, we ought not to conceal from ourselves the fact that if we hand over these people they will have neither a fair trial nor humane treatment. Indeed, they are only too likely to be tortured before death and, possibly, tortured to death. If to prevent such a horrible result involves a breach of the letter of our Agreement, at any rate we should be acting strictly in accordance with its spirit, because, after all, the whole basis on which we entered into the Agreement was that fair trial and fair treatment should be accorded to these people.
We should not seek to enable war criminals to evade trial and punishment, if they deserve it. But if we are convinced that they will not be given a fair trial, why should we ourselves not try them, and so ensure that they get the justice which it is our duty to give them? That, I submit, is the only course of action consonant with our duty as Christians and believers in justice. To hand them back would be to inflict an indelible stain on our record. I know the difficulties connected with this matter. It is not an easy situation to deal with, because of the engagements into which we have entered. But I do beg the Government to reconsider this matter and to stand firm. If they do, I am certain they will have the support of every decent-minded man and woman, both in this country and in the rest of the free world. I would think that this was really an occasion both for courage and for common sense. If we do not exercise those two qualities, we shall fall far below the measure of our responsibilities.
§ 3.45 p.m.
§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD HENDERSON)
My Lords, before I deal with the debate perhaps I may be permitted to thank the noble Earl, Lord Perth, for his kind personal references, and in particular for his reference to my father, which I greatly appreciate.
We are all very grateful to the noble Earl, Lord Selborne, for providing an opportunity to discuss this important problem of political refugees, war criminals and collaborators. As has been 1173 said, happily for us we do not know what it means to live in a police State under totalitarian rule. We enjoy the free exercise of fundamental human rights. They are well safeguarded in this country by moral, constitutional and other democratic sanctions. But because our internal freedom is secure, we are not indifferent to the plight of refugees from tyranny elsewhere. We have, as we have been reminded this afternoon, a long and deeply-rooted tradition of sanctuary for political refugees—perhaps never more actively invoked than in the years immediately preceding the last war. And I think we can be proud of our humanitarian record in this respect, because it is a great record. It is only right and proper, therefore, that vigilance should be exercised to make sure that we are not falling from grace in dealing with the problem of political refugees to-day. We all realise that immeasurable injury is being done to fundamental human rights in many areas of the world, and it is of vital importance that we should see to it that the impact of this retrogression is not allowed to lead to any deterioration in British conduct.
The noble Earl and other noble Lords who have taken part in this discussion, are serving the cause of humanity and democratic freedom when they show concern—as they have done this afternoon—for the maintenance of this historic policy by the authorities who are acting in the name of Britain and the British Government in territories in Europe for which we have special and direct responsibilities. I am sure that it will give general satisfaction when I say that it has never been our policy to refuse admission into our Zones of Germany and Austria to any genuine political refugee; nor should we ever hand such people back to the tender mercies of their political opponents. I might summarise this part of the discussion in three questions. First, are we under any Treaty obligations to deliver up any merely political refugees? The answer is; "No" Second, have we in fact ever delivered up such people? The answer is; "No" Third, are we now doing so? The answer is; "No"
Let me now proceed to deal with the problem in a little detail. With the exception of the Czechs who fled after the Communist coup, the number of political 1174 refugees now escaping to our Zone is comparatively negligible, especially in our Zone of Germany, where there are not more than a few hundred such persons. The stringent frontier control of the Communist Powers is designed to make the escape of political opponents as difficult as possible, and many of the persons seeking admission to the Western Zones are those whose departure is desired by their countries of origin—for example, criminals, black market operators and Communist agents. These undesirable persons are not welcomed in the Western Zones and although it is unfortunately true that many of them do succeed in finding their way in, the authorities concerned would be quite justified in turning them back, if caught, and even in deporting them, if their countries of origin were prepared to accept them—which, unfortunately, is not the case. Our authorities cannot be expected to forgo the right exercised by all Governments to refuse admission to undesirables and to deport them whenever such a course is necessary and possible. That, I think, is common ground.
Our policy has always been that inter-zonal boundaries should not be regarded as international frontiers. No frontier guards in the strict sense of the term, exist. German police are posted along the boundary, but their tasks are merely to control persons entering the British Zone and to check black market activities. They have no authority to refuse entry into the Zone. The Public Safety Adviser has no knowledge of any case where German police have taken such action on their own initiative, and I am assured that he would take disciplinary action if any cases came to his notice. By quadripartite agreement, a system of interzonal passes exists, but the purpose of these passes—so far as the British Zone is concerned—is to facilitate interzonal travel by Germans engaged in official and business activities. There is no legislation, British or German, making possession of these passes a condition of entry into the British Zone. Germans in possession of interzonal passes are, of course, allowed to pass without hindrance. Many others cross without passes and enter the Zone without going through police control. Those without passes who go through police controls are allowed to enter.
1175 Known criminals wanted by the German police in the Soviet Zone, or by the Soviet authorities, may be returned, but only after a formal warrant of arrest has been received from the Soviet Zone and the case has been proved in the appropriate German court and confirmed locally by the Public Safety and Legal Division. The remainder are allowed to remain in the Zone, and camps are available for those who have no accommodation to which they can proceed. They remain in the camps until accommodation is available. We therefore stand firm on the principle, not only of granting political asylum but also of the general freedom of travel by Germans within Germany. No case—I repeat, no case—has ever been brought to our attention of any political refugee being denied the right of asylum in either of our Zones. And I want to say, emphatically, that we will never turn back or deport a political refugee. It is worth noting that the International Refugee Organisation, which was set up by the United Nations to protect the interests of refugees, has never found occasion to complain of our treatment of these unfortunate people. On the other hand, the Communist States are constantly accusing us of protecting alleged war criminals and quislings by refusing to hand them over on demand.
The case of the Czechoslovak General, Janousek, was mentioned by the noble Earl, Lord Selborne, who stated that he had been turned back by German customs officers at the frontier. A report of his trial issued by the Czechoslovak Press Agency stated that General Janousek was arrested just when he was about to cross the frontier. This could not have been into either of the British Zones, which have no frontier with Czecholovakia. We have no other information regarding his arrest than that to which I have referred. Our treatment of political refugees is uniform in both British Zones and, so far as His Majesty's Government are aware, no Czechoslovak or Yugoslav nationals escaping into our Zone in Austria have been turned back. Nevertheless, I shall be glad to have inquiries made about any alleged case, if I am supplied with details, including names and dates.
I will add one further word on this aspect of the problem. Communist propaganda among displaced persons is 1176 now being directed towards spreading alarm and despondency among them, by suggesting that the Western Democracies have no interest in their fate and that they might as well return home voluntarily now, rather than be compelled to do so later. This type of propaganda is likely to be far more successful in the long run than was the earlier type of political harangue which had such meagre results. After three years in displaced persons' camps, with no immediate prospects of resettlement, many refugees tend to feel that they have been forgotten. Such is their tragedy that this is not surprising. It would, therefore, be a great disservice to these unfortunate people if they were misled into believing that this country, which has provided sanctuary for more post-war refugees than all the other countries in the world combined, would ever consent to the forcible repatriation of innocent political dissidents. I hope that I have shown conclusively that we are worthily maintaining our traditional British policy in respect of political refugees.
I come now to the question of our treatment of nationals of totalitarian States who are accused of war crimes or of collaboration with the enemy. Here let me say that in all cases we refuse to surrender any person unless a clear prima facie case has been established to the satisfaction of British legal opinion. The noble Earl, Lord Selborne, asked me what was the exact nature of His Majesty's Government's contractual engagements to hand back war criminals and quislings. They have been mentioned, I think, by the noble Earl, Lord Perth, and by the noble Earl, Lord Halifax. They are contained in two resolutions adopted by the General Assembly of the United Nations. The first of these resolutions was adopted on February 13, 1946. It will be sufficient if I quote the recommendation, which is as follows:That members of the United Nations forthwith take all the necessary measures to cause the arrest of those war criminals who have been responsible for, or who have taken a consenting part in, the above crimes…"—This refers to war crimes, crimes against peace and humanity—and to cause them to be sent back to the countries in which their abominable deeds were done, in order that they may be judged and punished according to the laws of those countries.The second resolution of October 31, 1947, recommended members of the 1177 United Nations who desire the surrender of alleged war criminals or traitors by members in whose jurisdiction they are believed to be to request such surrender as soon as possible, and to support their request with sufficient evidence to establish that a reasonable prima facie case exists as to identity and guilt. Those are the two international resolutions under which we have accepted obligations. All members of the United Nations are equally bound with us by those resolutions. It will be clear from what I have just said that our obligations still stand, notwithstanding the repudiation by the Yugoslav Government of the Bled Agreement. That Agreement was merely an administrative arrangement to facilitate the carrying out of our obligations under the General Assembly resolutions.
Let me now deal with the extradition procedure which we employ. The Government desiring the extradition of an alleged war criminal or traitor makes application through its Military Mission in Germany. The application is then reviewed by the Extradition Tribunal, which is under the control of the Legal Division of the Control Commission for Germany, and sits in Hamburg. Sufficient evidence to establish a prima facie case must be submitted to this Tribunal before it makes any recommendation to the Deputy Chief of Staff, and the latter, acting on behalf of the Military Governor, either approves or refuses extradition. Cases of doubt may be referred to the Military Governor personally. The procedure in Austria differs slightly, in so far as applications for extradition are made to the Austrian Government, in the first place. But, in effect, the final decision concerning any accused in the British Zone of Occupation rests with the British High Commissioner.
§ VISCOUNT SWINTON
May I ask the noble Lord whether the prima facie evidence which is required is written evidence, or evidence to be given which can be subjected to cross-examination?
§ LORD HENDERSON
I would not like to give a snap answer to that question. I will deal with the actual procedure in a moment. I think I can claim that both in Germany and in Austria adequate safeguards against the surrender of innocent persons are pro- 1178 vided. A different procedure has been set up for dealing with Yugoslav traitors and quislings, because there were three separate quisling régimes in Yugoslavia during the war and, therefore, the political background is much more complicated. The person accused is first interrogated by a British expert to establish his identity with the wanted man. On this being done, he is then asked to give an account of his war-time activities. After that he is told the charge against him, and given every opportunity of defending himself. The papers are then, submitted to a legal panel for an opinion as to whether a prima facie case has been established. If they decide it has not, the accused is automatically released. If they decide it has, the papers are then submitted to the Foreign Office, where a full statement of the case is prepared. Every relevant factor is included in such a statement—as, for example, an assessment of the political and personal issues involved. The case is then submitted to the legal advisers of the Foreign Office for a final opinion as to whether a prima facie case of actual and wilful collaboration has been established. Finally, a decision is taken at Ministerial level whether to surrender the man or not. Throughout, the accused is always given the benefit of the doubt, if doubt there be.
The care with which we scrutinise such cases should be sufficiently clear from the fact that out of 1,800 persons whose surrender has been demanded by the Yugoslav Government, only 51 have teen handed over by us. While it is not possible to follow up the results of the trials; in all cases, in every case of which we have knowledge, where a person surrendered by us has been brought to trial in his own country, the sentence was not more severe than would have been the case had the accused been a British subject, brought to trial before a British court on the same charges, and found guilty. The noble Earl, Lord Perth, urged that a prima facie case is not sufficient for handing over an accused. He thought the British authorities ought to be satisfied that anyone handed over would be condemned in a British court. What we do is to comply with the United Nations Assembly resolutions, and we do not hand over the accused unless and until we have satisfied ourselves that a prima facie case has been established, which would be the 1179 procedure in a similar case before sending to trial in this country. It has been suggested that such cases should be dealt with by a British court (I think the noble Marquess, Lord Salisbury, suggested this) or by an international court, because of the lack of justice in Communist States. That suggestion, I submit, is clearly impracticable, because there is no legal precedent for trying a person in one country for offences against the laws of another country, and because no machinery, either national or international, exists for such a purpose.
Finally, I was asked the number of persons who are at present detained by the British authorities with a view to their possible handing over to totalitarian Powers. The latest figures are: 22 Yugoslavs and 5 Poles held in Germany, and 5 Yugoslavs held in Austria. The number of Germans held is 45. To complete the picture, I would add the information that the following numbers are being held on behalf of our democratic Allies: 29 Belgians, 22 Dutch, 9 French, 1 Greek, 1 Dane and 1 Luxembourger. The number of Germans similarly held is 9I.
§ THE EARL OF SELBORNE
May I interrupt the noble Lord? I thought he said just now 45 Germans. Now he speaks of 91 Germans. I do not quite understand the distinction. That was my first question. My second question is this. Am I right in presuming that the allegations against those Germans is of having committed war crimes? The question of collaboration would not arise.
§ LORD HENDERSON
That is so. I am taking the total number. The first figure of 45 is of all the Germans who may be handed back to totalitarian States. The second figure relates to Germans asked for by democratic States.
§ LORD HENDERSON
It is clear from the tone and atmosphere of this discussion, and from the powerful speeches which have been made in it, that there is a general desire that the policy of handing over war criminals, collaborators and quislings should not continue indefinitely. Noble Lords are aware—the right reverend Prelate mentioned the fact in his speech—that a first 1180 step in this direction has already been taken. The Military Governor of the British Zone in Germany has announced that all applications for war criminals must be submitted on or before September 1, and that we shall consider, after that date, applications for the extradition of only such persons against whom a clear prima facie case of murder is made out. This decision will, I am sure, meet with the general approval and support of your Lordships' House. I will only add that His Majesty's Government have the question of future policy constantly under review, as they appreciate that these extraditions for war-time offences cannot go on for ever. Two or three particular suggestions have been made in speeches this afternoon, and I will make it my personal responsibility to bring them to the attention of the Secretary of State for his consideration.
THE EARL OF PERTH
The noble Lord said that there would be a provision as regards Germany. Does that apply equally to Austria? If not, I hope the noble Lord will consider that it should apply to Austria as well.
§ LORD HENDERSON
I have stated the actual factual position, and at the moment I do not wish to be drawn into speculation as to the future. I have indicated that His Majesty's Government are constantly reviewing the situation.
§ LORD RANKEILLOUR
My Lords, before the noble Earl replies, might I ask one question arising out of what was said by the right reverend Prelate? What exactly is the procedure at the Austrian frontier? When a Yugoslav refugee comes to the frontier, for instance, in Carinthia or in Styria, what happens when he begs for admission? Until he has gained admission, no question of extradition can arise. Is there discretion to turn him straight back, or may he be detained in a species of quarantine until his case is heard? If that is done, what follows? Is there an open hearing, as there would be before a magistrate—I do not necessarily say a public hearing, but a hearing in which he and counsel can appear and state their case—or is it all left to the discretion of some military or other authority after taking legal advice? I think a great deal depends on which it is.
§ LORD HENDERSON
If I may say so, with respect, I think that the noble Lord 1181 is under a misapprehension. He is referring to political refugees. When political refugees succeed in crossing the frontier, no question of sending them back arises. They are then in our territory. The processes of examination with a view to extradition apply only to war criminals and not to political refugees who have succeeded in getting out of their own country.
§ 4.15 p.m.
§ THE EARL OF SELBORNE
My Lords, in rising to withdraw my Motion, I would like to thank the noble Lord for his reply, and to say with what appreciation and gratitude I listened to many of the things the noble Lord said on behalf of His Majesty's Government this afternoon. It was particularly important that he reaffirmed, in no measured terms, the doctrine of asylum for political refugees. I am sure that your Lordships were all very glad to hear that His Majesty's Government intend to maintain that doctrine. At the same time, there were, if I may say so, one or two gaps in his reply to which I must allude at this moment, and I would be grateful if the noble Lord could see that they are given further consideration. In the first place, after assuring us that no political refugee is turned back, the noble Lord went on to say that this did not apply to undesirables, to criminals or black market operators. They were sent back.
§ LORD HENDERSON
May I interrupt the noble Earl? I said that we might desire to send them back, but that unfortunately their countries of origin would not receive them. If I may put it another way, not only is the political refugee safe, but in the main the other type of refugee is also safe, because we cannot put him over the frontier again.
§ THE EARL OF SELBORNE
I am glad to hear that, because I had misunderstood the noble Lord. I understood that there was a difference in treatment between an undesirable and a refugee. So long as that is not the case, I am satisfied; and that really answers the point of my noble friend Lord Rankeillour. If everyone who reaches our frontier is allowed to cross it—which is what I understand the noble Lord to say—the fears which we held are answered.
1182 Then we come to these seventy-seven people whose extradition has been demanded by Communist-controlled countries, and whom we are detaining on the charge of war crimes and collaboration with the enemy. The noble Lord said, in answer to my question, that we were bound by two sets of resolutions passed by the United Nations, in 1946 and 1947. If that is the nature of our binding then, of course, all other numbers of the United Nations are equally bound. The noble Lord did not tell us how the obligations in this respect are being interpreted by the other members of the United Nations, although I specifically asked him whether he knew of any case where the Americans had handed back an accused pen on within the last twelve months. I should be greatly obliged if the noble Lord would make inquiries on that point. I will later take an opportunity of asking him publicly how the other parties to this agreement, France and America, have acted in this respect.
The only other point I desire to make is with regard to the suggestion made by my noble friend and leader, Lord Salisbury, that we ought to try criminals ourselves rather than send them back to Communist countries. The noble Lord said that was impossible, but, after all, new circumstances demand new measures. We found means; of bringing people to trial at Nuremberg, in a way which I believe was legally unprecedented. I admit the issue was not precisely the same as it is in this case. If there were no other way, we could pass a special Statute, as has been done for special cases in the past. Therefore, if we are faced with the circumstance that people cannot have a fair trial in Communist-controlled countries, I do not think. His Majesty's Government can ride off on the plea that there is no alternative There is always the alternative of this Parliament setting up a court which could try people. I say that only by way of caveat. Comparatively speaking, these are minor, though important, points. I hope the noble Lord will give them further consideration. I should like once more to thank him for the general tenor of his reply, and I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.