§ 6.47 p.m.
§ Lord Avebury
My Lords, I beg to move that this Bill be now read a second time. I wish to begin by thanking Professor Peter Rowe for his unstinting advice on the detail and drafting of the Bill. I thank also Professor Francoise Hampson, Professor Nigel Rodley and Dr. Geoff Gilbert of the University of Essex, Professor Robert Goldman of the American University, Washington, and Professor Diane Orentlicher, director of the research office for the War Crimes Tribunals for their advice. I thank also the staff of the Library, who seldom receive public acknowledgement, and in particular, Mr. Steven Kennedy and Mr. Hugo Deadman for much help on the literature of war crimes and the development of legal mechanisms for dealing with them. I thank also the staff of the Public Bill Office. Of course, I take full responsibility for the Bill as it appears before your Lordships today.
I would say only that all the distinguished lawyers I consulted personally as well as the written authorities to which I referred—for example, Professor Theodor Meron and David Scheffer of the US State Department whose memorable joint seminar on war crimes with Judge Goldstone and M. Bacre Waly Ndiaye, the UN Rapporteur on Extrajudicial Executions, I attended in Geneva last April—are satisfied that all states have the right to try the crimes dealt with in the 1306 Bill, and many would say that it is a duty. The practice of states lags behind the opinion of the lawyers, as Professor Meron observes, and this is an opportunity for Britain to catch up.
Under the Geneva Conventions of 1949, every state has an obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of those conventions and to bring such persons, regardless of their nationality, before its own courts, the courts of another state or an international criminal court. The duty to prosecute and punish the authors of grave breaches is absolute, as the International Committee of the Red Cross makes clear in its commentary on those conventions. The UK and other Commonwealth countries whose law is derived from ours have enacted legislation making any grave breach of the conventions a felony and providing that any person found guilty of such an offence, whatever his nationality and wherever in the world the crime was committed, shall be subjected to life imprisonment where the offence involves wilful killing, and to a maximum of 14 years for any other grave breach. That is the effect of the Geneva Conventions Act 1957 which this Bill seeks to amend.
What is meant by "a grave breach of the conventions"? Article 50 of the first Geneva Convention defines it as,wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully or wantonly".However, Article 2, which is common to the four conventions, provides that the "grave breach" provisions come into play only in cases of armed conflict between independent states, whether or not a state of war is recognised by one of them and in cases of partial or total occupation of the territory of a party to the conventions, even if there has been no armed resistance to the occupation.
The conventions were drafted at a period in the world's history when international armed conflicts were assumed to be the main threat. Common Article 3, which deals with conflict of a non-international character, sits out on its own, as Professor Rowe puts it, and although it prohibits conduct which is equivalent to the "grave breaches" specified in relation to international conflicts it does not put any obligation on the parties to criminalise that conduct in their domestic law.
That international law allows such wide jurisdiction is certain. In the case of Dusko Tadic, the International Tribunal on the Former Yugoslavia found that,assuming arguendo that there is no clear obligation to punish or extradite violators of non-grave breach provisions of the Geneva Conventions, such as common Article 3, all States have the right to punish those violators".I think there are very few jurists who would argue against that proposition, but perhaps my noble friend Lord Lester will reinforce the point when he speaks in case there is any doubt in your Lordships' minds.
Belgium enacted legislation going much further than this in 1993, dealing with breaches of Protocols I and II as well as Article 3 of the conventions. In the US, Senator Leahy of Vermont is to introduce a Bill very 1307 shortly, as I heard from his legislative assistant Mr. Tim Rieser today. So I will take it that we follow the International Criminal Tribunal in saying that violations of the laws and customs of war, which means the same as "war crimes", includes acts committed both in international and internal armed conflicts, and that we are acting within our powers if we extend the Geneva Conventions Act to include the latter.
Today, according to the American lawyer Karen Parker, there are 35 countries in which there are internal conflicts between states and armed oppositions. Up to now, she has included in her annual surveys only those conflicts which have been noticed by the UN Security Council or the General Assembly. There are others, not necessarily smaller or less destructive, which have not come to the attention of the United Nations or which have exploded since her last survey in the winter of 1996. The war in eastern Zaire, the conflicts with the Lord's Resistance Army and the West Nile Bank Front in northern Uganda, which I had the opportunity to discuss with President Museveni when he was here on a visit a couple of weeks ago, and the virtual civil war in Algeria are examples to add to the list. The number of people killed every year in these 40 or so minor wars runs into tens of thousands, and the number forcibly displaced runs into millions. There are no international conflicts at all today, thank goodness, though some of the internal conflicts have international dimensions. Examples are Kashmir, which involves India and Pakistan, and East Timor where Portugal and Indonesia are concerned.
The case of East Timor is particularly notable, because the Government decline to say whether the Fourth Geneva Convention, which deals with the case of territory belonging to one high contracting party occupied by another, applies there. If it does, the offences committed there by the Indonesians which included the wilful killing of thousands of non-combatants, could be tried in our courts already. If it does not, this Bill would come into play and they could be tried for a breach of Article 3. The point is of more than academic interest because we have played host from time to time to Indonesian war criminals. From January to December 1989, former Major Yunus Yosfiah was a guest at the Royal College of Defence Studies. He was the commander of the assault on Balibo on 16th October 1975 in which five Australian newsmen, including two British citizens, were murdered in cold blood.
Examples show that in the course of these internal conflicts, violations of the laws and customs of war are if anything more likely to occur than in the course of wars between states. There is some incentive for states to observe international law because they want their opponents to do the same. But in domestic conflicts, where the state may see the civilian population as forming a reservoir from which the armed group draws its strength, there is an inclination to treat non-combatants as legitimate targets. On the other side, armed opposition groups may be less disciplined and therefore less scrupulous about the rights of civilians whom they see as belonging to the state or to another 1308 faction. There is no logical distinction, however, between the crimes committed in domestic and international armed conflicts, and they should be treated identically by the law. Thus it is not only permissible but also expedient that we should extend the Act for this purpose.
The week before last an organisation was formed called Indict to bring Saddam Hussein and his top brass to justice. The supporters of this initiative mostly assumed that it would be necessary to establish a new ad hoc war crime tribunal on the lines of those already in existence for the former Yugoslavia and Rwanda for the purpose. I agree entirely that Saddam should be tried together with his military commanders who were responsible for atrocities such as the murder of 5, 000 civilians by poison gas at Halabja, the extermination of the marsh Arabs in the south, the wanton destruction of the holy shrines in Najaf and Karbala, and the wilful killing of tens of thousands of Shi'as after we left them in the lurch at the end of Desert Storm. I am not sure that yet another ad hoc tribunal would make sense when the two present ones are proving expensive, cumbersome and ineffective.
Saddam Hussein would be liable to prosecution already under the Fourth Geneva Convention for criminal acts done while his forces were occupying Kuwait, and for crimes against peace for his aggression against Iran and Kuwait as well as for the use of poison gas during the Iran-Iraq war, admitted by Foreign Minister Tariq Aziz on 1st July, 1988. On the use of poison gas at Halabja, within the territory of Iraq, our Government's position was that this constituted a serious and grave violation of the 1925 Geneva Protocol and international humanitarian law, even though that protocol only applied during a "war" which at that time meant an international armed conflict.
If there is to be a new war crimes tribunal on Iraq, why not equally one on Sudan, for instance, to deal with the atrocities committed by the NIF regime against the peoples of the south, the Nuba Mountains, and elsewhere, as described graphically by the noble Baroness, Lady Cox, in her intrepid forays into those dangerous areas. Only recently she has been there again, this time to the remote southern Blue Nile where she gathered evidence about the murder of civilians thought to be supporters of the SPLA, and the scorched earth policy adopted by the Sudanese military there. Clearly, there should be a tribunal to deal with General el Beshir, Dr. Turabi and their henchmen.
Yet this approach would lead us into enormous difficulties. Sadly, war crimes are being committed in all the 40 conflicts raging now, and there will be others in the future. It is not possible to imagine upwards of 40 separate tribunals, operating independently of one another. Judge Goldstone said last April that he had 24 investigators for Rwanda and that if he had had 124 that would still have been grossly inadequate. The United Nations will never agree to the creation of dozens of tribunals, each of them needing vast resources to collect and maintain evidence as well as to conduct the proceedings themselves.
1309 Recognising the problem but appreciating the necessity for universal jurisdiction over war crimes wherever they may be committed and whether in the course of domestic or international armed conflicts, the United Nations has been taking steps toward the establishment of an international criminal court. This would have jurisdiction, according to the draft statute, over,serious violations of the laws and customs applicable in armed conflict".The absence of the word "international" means that it would be able to try Article 3 offences, reinforcing the idea of universal jurisdiction over these offences.
However, in view of the collapse of previous attempts to create an international court, there cannot be any certainty that the present efforts will succeed or that they will retain the breadth of jurisdiction which one finds in the draft. The programme adopted by the General Assembly in December 1996 was for a series of meetings of the Preparatory Committee, leading to a diplomatic conference some time after April 1998 to adopt the draft convention. If it does go through in its present form, and this Bill is enacted, there would be parallel jurisdiction, but there is already parallel jurisdiction with the 1957 Act. It would be convenient if offences which are triable before the international criminal court were also crimes under our law, and if decisions on where they were to be tried rested on practical considerations such as where the witnesses happened to be.
I turn now to the Bill itself. The proposed new Section 1A(1) makes it an offence to commit, aid, abet or procure any act in breach of Common Article 3 outside the United Kingdom. The reason for this is that if an internal armed conflict did arise in this country, the specified acts would constitute offences under our existing law. The penalties for any breach of Article 3, as specified in the Bill, are the same as those for a grave breach of the conventions under the 1957 Act.
Subsection (2) excludes members of the Armed Forces from the legislation. If British forces were sent to help a friendly state in military operations against a rebel force and a British soldier, for example, allegedly killed a protected person, he would be liable to be tried under Section 70 of the Army Act, or under the ordinary law he could be charged with murder. The same would apply in the event that the soldier was part of a UN force which became involved in an internal conflict. There is the example of Canadian soldiers alleged to have committed offences in Somalia who were tried under their equivalent of the Army Act. Subsections (3) and (4) correspond with identical provisions in the parent Act.
I realise that the Bill is a material extension of extra-territorial jurisdiction, enabling our courts to deal with offences committed in the course of armed conflicts abroad with which Britain is not involved. But we already have legislation allowing us to try the perpetrators of genocide, torturers (under the Act which gave effect to our ratification of the torture convention) and, under the War Crimes Act 1991, war criminals from the Second World War. Therefore it is not without precedent even if one does not go into the other 1310 legislation dealing with extra-territorial offences such as paedophile offences which have been the subject of much discussion in this House.
If your Lordships give the Bill a Second Reading, it will send a message to those who are still immune from prosecution for war crimes and crimes against humanity and soon there would be no place in the world in which a Mengistu or a Saddam could escape retribution. Britain could give a lead, particularly to Commonwealth states which have similar legislation to ours, in making ready to prosecute the tyrants and their servants who wilfully kill and harm their own citizens.
Moved, that the Bill be now read a second time.—( Lord Avebury.)
§ 7.4 p.m.
§ The Lord Bishop of Oxford
My Lords, I am extremely grateful to the noble Lord, Lord Avebury, for bringing the Bill before the House. I believe it to be an important piece of legislation. Before coming to its details I should like to set it within a wider framework and one which I believe brings out that importance.
There are those who still argue that in war anything goes: once war breaks out, morality goes out of the window. That view is counter to one of the most carefully worked out convictions in Western civilization. This says that, even in war, morality holds. In particular, there is the central insight that non-combatants, or civilians—that is, those who are not directly contributing to the war effort—should never be the object of direct attack. Sadly, that rule has too often been flouted, but the moral claim is still there, formulated by the Church in the 11th century, given intellectual backing by the great Spanish theologians Francisco de Vitoria and Suarez in the 16th century, making its way into international law via Grotius and now enshrined in the laws of all civilized countries.
Sadly, in a fallen world defensive wars are sometimes necessary, but even in war there is a morality to be observed. There is a Ius in bello as well as a Ius ad bellum. What applies to war between states applies no less to internal conflicts—civilians who are not directly contributing to the armed conflict should not be the direct object of attack. In short, killing civilians or disarmed combatants is murder. It is one of the great achievements of our time to have this fundamental moral insight enshrined in international law.
In relation to the Bill now before the House, I should like to highlight three points. First, the changing nature of warfare. When one speaks of war, the usual impression is that war is the armed forces of one or more states engaging in combat with the armed forces of another nation or coalition of nation. If, however, one studies the expert literature on the field, in particular the Yearbook of the prestigious Stockholm International Peace Research Institute, it becomes clear that wars between nations have been very much the exception in recent years. This was the case even before the end of the Cold War and is certainly the case now. In each of the last 10 years, there have been, on average, around 30 major armed conflicts in progress, according to the SIPRI definition. That definition is that a major armed 1311 conflict is one in which over 1, 000 people have been killed in the duration of the conflict. Almost all of these conflicts, with spectacular exceptions such as the Iran-Iraq war and, more recently, the Gulf War triggered by Iraq's invasion of Kuwait, have been internal conflicts, with government forces fighting a rebel force, liberation movement, secessionist group or repressing its own population—depending on the different situations and the political categories and values used to assess the conflict. One can think of situations such as the long-lasting war between government troops in Sudan, which was mentioned by the noble Lord, and forces from the predominantly Christian south of Sudan, as just one of the many examples.
The proposed legislation seeks to take account of the nature of contemporary warfare, as atrocities are not only committed in the few wars between nations but obviously also in wars within nations. Indeed, civil wars are often the bloodiest and give rise to some of the most serious human rights violations, even to the level where it is appropriate to speak of genocide—a term not to be taken lightly or used merely as a term of abuse—in cases such as Rwanda. The noble Lord is to be congratulated on bringing forward this proposal as it would be a small but significant step towards enabling the international community to apply the Geneva conventions to internal conflicts.
My second point is the issue of domestic legislation and international law. Clearly, international tribunals such as those addressing war crimes in former Yugoslavia and Rwanda have their limitations. The late Sydney Bailey, a careful commentator on the United Nations, said in one of his last works:There is something distasteful about the creation of ad hoc courts with retroactive jurisdiction and dealing with some but not all grave violations of international law".At first sight, that may seem an excessively purist viewpoint when faced with crimes and atrocities of the magnitude of those committed in Rwanda and former Yugoslavia, but the ad hoc nature and the retroactive effect of such tribunals must be seen as a weakness. In the case of Rwanda, the new government's dissatisfaction with the effectiveness of international mechanisms is an additional element. We must seek to ensure that international humanitarian law is effectively and impartially practised. This must be a concern for the international community, in order to remove any suspicion that what is being practised is "victors' justice" or even revenge rather than a careful application of the highest standards of international law.
The United Kingdom and the states of the British Commonwealth have the Geneva Conventions Acts as legislation to provide a means for trying those suspected of any grave breach of the conventions. However, internal or non-international conflicts are not covered by the Geneva Conventions as they now stand.
The question must then be addressed: how the legislation proposed by the noble Lord would help in this regard. I suggest the following two ways. First, until a satisfactory international criminal court can be established, it is necessary for national legislation to be in place as a deterrent so that those who have committed 1312 atrocities know that they could be tried if they seek to come to this country or other countries which enact comparable legislation. Secondly, at the same time, putting such legislation in place in an increasing number of countries will mean that the political will is generated which would enable a permanent international criminal court to be established, and adequately resourced in terms of specialist personnel and resources. In short, work at the national and international levels thus reinforce each other.
Finally—as the last of the three points I mentioned at the beginning—lest it be felt that these proposals are Utopian, I wish to quote the judicious evaluation by Professor Adam Roberts, Montague Burton Professor of International Relations at Oxford University, writing recently in the Adelphi Papers series of the International Institute for Strategic Studies. Professor Roberts writes:Concern about implementing international humanitarian law is a driving force behind proposals for the establishment of a permanent international criminal court, which is the subject of ongoing negotiations under UN auspices. There is no disagreement that this international court would be involved in trying 'core crimes'—war crimes, crimes against humanity and genocide. However, there are numerous issues yet to be resolved about jurisdiction over other crimes, and the extent to which the prosecutor might have an independent investigatory role. Whether or not the champions of this proposal overcome the concerns of states about independent supra-national investigations into their security activities, the demand for effective implementation of the laws of war is likely to remain very strong, and to be difficult to translate into effective policies of international enforcement against recalcitrant states".I have cited this carefully balanced paragraph at length since it indicates the need for precisely the kind of legislation proposed by the noble Lord as an intermediate national step en route towards effective international instruments. For this House to send the signal to those who commit atrocities that they are liable to face trial in our courts should they set foot in this country would be a small step towards making this a more humane world. It would indicate that we do not accept that nothing can be done about crimes against humanity as we reach the end of this genocidal century and reach the threshold of a new millennium. We can do something to outlaw atrocities. This Bill is, I believe, a step in that right direction.
§ 7.13 p.m.
§ Lord Lester of Herne Hill
My Lords, having heard two such powerful speeches I am tempted to say, "I agree, and I have nothing more to add". However, I hope that your Lordships will permit me to add a few remarks at not too great length.
My noble friend Lord Avebury, indefatigable champion of the international protection of human rights, is to be congratulated on introducing what the right reverend Prelate the Bishop of Oxford rightly describes as an important Bill. I wish to associate myself with everything that has been said by my noble friend and by the right reverend Prelate.
I wish to begin by focusing on the mischief, as it were: what is it that concerns so many? This was well expressed in the words of the senior adviser and counsel to the United States permanent representative to the 1313 United Nations, Mr. David Scheffer, who wrote in Foreign Policy, in the spring of last year,The number of war crimes—genocide, crimes against humanity, and violations of the laws and customs of war—that have occurred in our time is depressingly large: the Iraqi assault against its own Kurdish and Shiite populations and against Kuwait; ethnic cleansing in Bosnia and Croatia; genocide in Burundi and Rwanda; widespread tenor and murder in Angola, Chechnya, Ethiopia, Haiti, Liberia. Somalia, and Sri Lanka; the human depravity of recent decades echoed in the courtrooms and public arenas of Argentina, Chile, Ethiopia, Guatemala, and Honduras; and the unforgettable genocide in Cambodia. Together they have sparked global indignation and prompted calls for national or international remedies".Mr. Scheffer also wrote,Lingering on the horizon are rogue horsemen seemingly liberated from the rule of international law: Individuals acting with impunity, sometimes shielded by governments that embrace violations of international humanitarian law, are threats to the peace and security of their own peoples and, inevitably, to the international community".As I am sure we shall be reminded, if necessary, it is a matter of ancient British constitutional principle that the criminal jurisdiction of courts throughout the United Kingdom is normally territorially based. The exercise of an extra-territorial criminal jurisdiction is the exception and gives rise to real practical problems in obtaining cogent and admissible evidence of crimes committed abroad. But those practical problems of evidence and proof have not prevented our courts for centuries from having the power to try crimes of murder, treason and piracy committed in any part of the world; nor have these problems prevented Parliament from extending the criminal jurisdiction of our courts extra-territorially where the nature of the criminal activity made it essential. For instance, recently Parliament extended extra-territorial jurisdiction to cover drug trafficking overseas, and—only last year—to crimes committed on board aircraft coming to this country.
There is, of course, another basis—in addition to what I have mentioned—for extending criminal jurisdiction beyond our territory, and that is to cover crimes against humanity. Since the Second World War, Parliament has extended that jurisdiction to the crimes of genocide, state torture and war crimes, as we have heard. Parliament has done that because, with the development of human rights as part of customary international law and as a result of widespread ratification of humanitarian conventions, these have become recognised as offences against the law of nations and against common humanity, and thus subject to universal jurisdiction, with no hiding place or safe haven for the perpetrators, whether the victims were aliens or nationals of the country where the perpetrators performed their hideous acts.
The Nuremburg International Military Tribunal, inspired by what one might describe as the jurisprudence of the late judge, Sir Hersch Lauterpacht, set the precedent in punishing the perpetrators of war crimes and crimes against humanity, and in preventing them from hiding behind the cloak of state sovereignty or state immunity. There matters languished for decades after 1949 despite heinous atrocities in other parts of the world such as Cambodia, Indonesia, and Iraq. Those are just three examples. However, recent conflicts in the 1314 former Yugoslavia and in Rwanda have stirred international and national action. There were two ad hoc international tribunals and only two years ago there was the enactment of the Geneva Conventions (Amendment) Act 1995 introduced by the noble Lord, Lord Archer of Weston-Super-Mare.
The 1995 Act amended the 1957 Act which itself brought into force the 1949 Geneva Conventions so as to extend our criminal law to cover "grave breaches" of the 1977 Protocol I to the Geneva Conventions and so as to enable the UK Government to ratify Protocols I and II. I very much welcome the fact that the Government recently indicated in answer to a Question asked by my noble friend Lord Avebury that they intend to ratify those two protocols in the near future.
The Geneva Convention (Amendment) Act 1995 strengthened the protection for the civilian population in international armed conflicts. The important question raised by the present Bill is whether we should do the same in respect of breaches of the humanitarian provisions of a fundamental character guaranteed uniformly by Article 3 of the four 1949 Geneva Conventions, dealing with armed conflicts not of an international character, but which are internal armed conflicts. Such breaches of humanitarian law involve gross affronts to human dignity which are matters of real international concern whether they occur in international or internal armed conflicts. As a matter of history, the "grave breaches" provisions of the Geneva Conventions have not been applied to the victims of non-international armed conflicts. Neither Article 3, common to the Geneva Conventions, nor the 1977 Additional Protocol II requires states to punish serious violations of the applicable international humanitarian standards. However, that does not mean that grave breaches cannot or should not be punished under national criminal laws. In my opinion the United Kingdom is fully entitled to extend extra-territorial jurisdiction as a matter of international law.
Article 3 of the general provisions common to the four Geneva Conventions provides that,Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria".The articles also provide that in regard to those persons the following acts are prohibited: violence to life and person, in particular, murder, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees recognised as indispensable by civilised peoples.
Many but not all of the examples of flagrant violations of human rights are criminal offences under UK municipal law, such as violence to life and person, including murder, manslaughter, cruel treatment, torture and rape; but, apart from acts of murder and torture, our courts have no jurisdiction over these crimes if they have been committed abroad.
1315 The key question raised by the Bill is whether our Parliament should follow the example, referred to by my noble friend, set by Belgium in 1993 which enacted a law providing for criminal jurisdiction of Belgian courts over breaches of the Geneva Conventions in cases of internal armed conflict, regardless of the nationality of the victim or the perpetrator or of the location of the offence. On the basis of that law, the Brussels prosecutor's office, in May 1995, issued several international arrest warrants against persons involved in the atrocities in Rwanda. One of them was issued against a Rwandan responsible for the massacre of other Rwandans in Rwanda.
I believe that the answer to that key question is that Parliament should indeed empower our courts to exercise jurisdiction over breaches of international humanitarian law arising in internal conflicts in such circumstances. There is some support for that in a recent decision of the United States Court of Appeal dealing with a civil claim against Radovan Karadzic. There is also support in a judgment of the International Court of Justice in the US v. Nicaragua case. I do not pretend that one can now say that breaches of common Article 3 are part of customary law. Nonetheless, to enact this law would be to place the United Kingdom in the forefront of the development of international humanitarian law. As was said by both previous speakers, the vast majority of conflicts in the world are internal, or at least partly internal, and the most egregious violations of humanitarian law arise in that context.
The enforcement of this body of law cannot depend on international tribunals alone. They will never be a substitute for national courts. There is a pressing need to create an international criminal court; however, I doubt that that will happen for many decades. Even if there were a permanent international criminal court, it would lack the resources to deal with all but the most flagrant and gross violations. It would still be essential for national courts to be empowered to exercise a concurrent jurisdiction regardless of the nationality of the victim or the perpetrator or the location of the offence.
The Bill gives us an opportunity as a nation to set an example which may be followed by other member states of the Commonwealth, of the Council of Europe and beyond. I suggest that it deserves a Second Reading. It is a bold, honourable and innovative measure. It cannot become law at this point in the parliamentary electoral cycle; however, I hope it will result in the enactment of legislation sooner rather than later, and will send a powerful message across the world, as the right reverend Prelate said, to act as a deterrent and a good example.
§ 7.26 p.m.
Lord Archer of Sand well
My Lords, not for the first time the House owes a debt to the noble Lord, Lord Avebury, both for drawing our attention to this problem and for his very clear and comprehensive introduction to our debate. Perhaps I might be allowed to say that we are indebted, too, to the advisers whom he mentioned who gave so unstintingly of their time to assist him and to assist us.
1316 I understand the feeling of the noble Lord, Lord Lester of Herne Hill; in view of preceding speeches, an intervention from me is almost superfluous. That is particularly so in view of the speech of the noble Lord himself, which adds to the list. Nevertheless, I do not intend to be deterred from making one, if only because it is important to demonstrate the breadth of consensus in this House on the matter.
I hope that the noble Lord, Lord Avebury, will forgive me if I begin by observing that I should like to think that this Bill might transpire to be unnecessary for two reasons. First, I would dearly like to think that we might see the end of internal conflicts, and certainly the end of infringements of humanitarian law in the course of them. However, I suspect that, sadly, that may turn out to be over-ambitious.
Secondly, and perhaps a little more realistically, I hope that the time is fast approaching of the establishment of an international criminal court. I appreciate the point made by the noble Lord, Lord Lester, that it may never wholly replace domestic jurisdiction in this sphere. But it might, one hopes, in due course, take over a great deal of that jurisdiction. If we saw that happening, it would not be before time. The concept was being widely discussed as long ago as 1947, particularly in the context of the genocide convention. Some of us have continued to write and speak about it during the years.
Two years ago it was being stated that the concept of an international criminal court was 50 to 100 years away. Then, on 17th December last year, the General Assembly of the United Nations adopted a new international consensus about the need to do something about the kind of conduct that we have heard discussed in this debate. It adopted a resolution calling for just such a court. It renewed the mandate of the Preparatory Committee and decided that a diplomatic conference to finalise the statute should be held in 1998. We are told that it is hoped that it will be held in June next year. That is a great step forward in human well being and one which we hope will be thought of by future historians as an important milestone in the progress of civilisation.
It is largely the achievement of the non-governmental organisations. I hope that we shall shortly hear proper tributes to the NGO coalition and if it is not invidious to single out one, particularly the World Federalist Movement which a few years ago was virtually a voice crying in the wilderness. It was accused of being wholly unrealistic.
However, we do not know how the small print of the statute, or even the large print, will look or whether there will be a statute. There is a great deal of hard thinking and hard bargaining to be done. We do not know what the precise relationship will be between the jurisdiction of the court and the domestic law of the member states. Sometimes, in any event, as the noble Lord, Lord Lester, said, it may be necessary or in the interests of justice for certain defendants to be tried in national courts. So it would be bold to predict that the Bill will be superfluous on that ground.
1317 It is possible that if what is sought were to be achieved, there might be no need for states to confer jurisdiction on their domestic courts to deal with the offences. We have seen the limitations of the ad hoc tribunals pointed out by the right reverend Prelate the Bishop of Oxford. Perhaps one should add in passing that the Government are to be commended on the way in which they have tried to lend their support to the international tribunal for the former Yugoslavia. The United Nations Independent Tribunals Order provides for full co-operation by our national authorities to facilitate the work of the court by such measures as arranging for the arrest of persons summoned before the tribunal and the discontinuance of domestic proceedings in the same matter.
But for the present it is likely that there will continue to be internal conflicts, that they will involve breaches of humanitarian law, and that human beings will continue to suffer unspeakable tragedies of the kind we have heard described in the debate. We are grateful to the noble Lord, Lord Avebury, for taking this initiative, calculated to protect those who are most vulnerable.
Anything we can do to deter that kind of conduct will be welcomed at least by the potential victims. So I hope that the Government will add to their commendable record on these matters by supporting or, better still, adopting the Bill. It may be that it will not reach the statute book during this Session, but a declaration from the United Kingdom Government could ring round the world.
We cannot foresee whether the jurisdiction which the Bill seeks to confer will ever be invoked. It may be that people accused of committing these foul crimes will never be found within the jurisdiction of the English or Scottish courts. That could be said of any one country. But, as the right reverend Prelate movingly pointed out, we are discussing conduct which has long been condemned by the whole international community, which is in breach of international law, and which those who perpetrate it must know is regarded with revulsion by all civilisation. They are not taken by surprise. Those who practise such conduct need to know that however invulnerable they may feel while they are surrounded by their armed henchmen they will be pursued and that there is nowhere on earth where they are immune from retribution. That can be achieved only if every country which claims to be committed to human rights is prepared to pass legislation of this kind.
If the legislation is enacted, not only will the United Kingdom be denying those criminals a sanctuary in this territory but also it will be giving a lead to those countries who might otherwise hesitate, making it more difficult for those who may be tempted to offer them a hideaway.
I appreciate the reason the noble Lord, Lord Avebury, spent a little time on whether, as a matter of international law, this country was entitled to pass such domestic legislation. I am bound respectfully to agree with the noble Lord, Lord Lester. I should be surprised if that were seriously contended. The principle of conferring on our courts extraterritorial jurisdiction over offences committed abroad is now, as the noble Lord, 1318 Lord Lester, said, well entrenched in our law. We owe one of the more recent extensions of our domestic jurisdiction to the noble Lord, Lord Hacking, and I was about to pay tribute to him. However, he is no longer in his place. Offences relating to slavery have been triable here extraterritorially since 1873. Torture committed abroad is triable here. And, of course, we have the precedent of the two Geneva Conventions Acts themselves.
When extraterritorial jurisdiction is under discussion, I have discovered from experience that we have sometimes heard the argument that it would provide an extra burden on our courts so that there are resource implications. In this case, I cannot believe that the jurisdiction will be invoked so frequently that that will be a consideration.
I turn to the noble Earl who will reply to the debate. I hope that on this occasion he will have the pleasure so often denied to him and other Ministers on the Government Front Bench of announcing that the Government are on the side of the angels and that they too declare their support for the Bill.
§ 7.32 p.m.
The Earl of Courtown
My Lords, before I congratulate the noble Lord, Lord Avebury, on raising this serious matter, I wish to say to the noble and learned Lord, Lord Archer of Sandwell, that I am pretty sure that I am on the side of the angels.
Serious issues have been raised by the noble Lord, Lord Avebury, this evening, and that has been reflected by the speeches of all noble Lords and the right reverend Prelate. The United Kingdom takes its responsibilities under all international conventions very seriously and we enacted legislation in 1957 to enable us to comply with the provisions of the Geneva Conventions. We are required to take criminal jurisdiction over grave breaches of the four Geneva Conventions, and that we do by virtue of the 1957 Act.
Common Article 3 of the conventions applies to non-international—that is internal—armed conflicts and, very briefly, it protects non-participants in the conflict from violence towards life and person. As I have said, however, the conventions themselves require state parties to take criminal jurisdiction only over grave breaches of the articles of the convention and Common Article 3 contains no grave breaches. There is, therefore, no requirement in international law for the United Kingdom to take criminal jurisdiction over breaches of Common Article 3.
The question of extraterritorial jurisdiction mentioned by noble Lords—giving the courts of this country jurisdiction over criminal offences committed overseas—was the subject of full review last year. The report of that review—a copy of which is available in the Library of the House—recommended that the basis of the jurisdiction of our courts should remain territorial, and the Government accepted that recommendation. The review recommended, however, that extraterritorial jurisdiction could be taken in exceptional cases, and set out guidelines which could be used to assist the evaluation of proposals for an extension of jurisdiction.
1319 Following that review, two measures for wider jurisdiction have been announced. Tomorrow, in another place, there will be a debate on a Bill which would give our courts the power to consider cases of conspiracy and incitement, in this country, to commit an offence overseas. The provisions of that Bill would certainly cover instances where a person did something in this country, which amounted to incitement, or conspiracy, in preparation for a breach of Common Article 3 which amounted to a criminal offence under United Kingdom law. Earlier, in another place, there was consideration of a Bill which, among other things, provides for extraterritorial jurisdiction over certain sexual offences involving children—a matter which I know has the strong support of many noble Lords.
The Government's mind is not, therefore, closed to the courts of this country taking account of actions which have repercussions abroad, but such action must remain an exception to the general rules of jurisdiction and be fully justified in each case. In questions involving the internal affairs of other states—as Common Article 3 clearly does—the Government do not consider that it would be right to take jurisdiction unilaterally. The international community has not seen fit to make breaches of Common Article 3 grave breaches of the conventions requiring state parties to take jurisdiction.
I should like to say that the Government very much deplore the appalling acts of Saddam Hussein and his regime. Acts of that kind have been rightly condemned by the international community.
The noble and learned Lord, Lord Archer of Sandwell, mentioned the proposed international criminal court. Preparatory negotiations are continuing in the United Nations about setting up an international criminal court. Government officials are participating in those negotiations.
In relation to the work of the preparatory committee for that criminal court, many non-governmental organisations have been active in their endeavours to ensure that the discussions take place on the basis of the fullest possible understanding of the issues. I welcome their contributions.
1320 In the light of what I have said, it will not surprise your Lordships to hear that the Government cannot support the Bill. However, in keeping with the traditions of this House, we shall not oppose it this evening.
§ 7.42 p.m.
§ Lord Avebury
My Lords, I am grateful to all those who have contributed to the debate: the right reverend Prelate, my noble friend Lord Lester of Herne Hill and my friend—if I may call him that—the noble and learned Lord, Lord Archer. Their powerful arguments reinforced the case which I made for such legislation to be enacted. Even the Minister reinforced the case in his own way by pointing to the legislation being introduced tomorrow in another place to criminalise conspiracy to incite or commit acts overseas in breach of Common Article 3. We should be in the anomalous position, if that Bill were enacted, of making it an offence to conspire to commit a breach of Common Article 3 but not making the substantive crime an offence. That would be a very curious position with which to end up.
I was encouraged also by the fact that the Minister pointed to examples of the extension of extraterritorial jurisdiction which are on a par with those already cited by my noble friends, such as the legislation dealing with the torture convention, the genocide convention and other crimes against humanity. So I suggest that we should at least go the one stage further of seeing where we get to in Committee with this Bill, even though, as my noble friend said, it is not likely that we shall be in time to pass it through all its stages in this House and another place between now and the general election. Having heard the four speeches in favour of the Bill this evening and the Minister's lukewarm speech against it, it would be valuable to open up the discussion to a wider circle of your Lordships by going into Committee and seeing what ensues. Even if we do not conclude proceedings, there is then some guidance to this House and another place, which may want to consider similar legislation some time after the general election. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at a quarter before eight o'clock.