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Mr. Winnick: The hon. Gentleman is right about Brunner, and we know Brunner's record. However, is he aware that I initiated a debate in the late 1980s about a notorious Nazi war criminal, who was responsible for murder by exhaust fumes before the gas chambers existed? That mass murderer was living in Chile under his own name. In replying to that debate on behalf of the then Government, Malcolm Rifkind made it clear that, although he was obviously concerned, he would make no representations. So the hon. Gentleman is saying nothing unique; I am afraid that successive British Governments have taken that line.
Dr. Lewis: I thank the hon. Gentleman sincerely for making that point. I hope that he acknowledges that in no sense am I trying to be party political. I strongly suggest
that, in both those cases, the Government of the day received official diplomatic advice on what was, or was not, a wise course to follow. The hon. Gentleman may have been out of the Chamber when I referred to Walter Rauff, whom I assume is the criminal that he mentions, and I entirely endorse the sentiments that he expresses.People such as Rauff, Mengele and Brunner deserve punishment in their own right; it is fit and meet that they should be punished, but there are many more positive reasons to support the principle of the International Criminal Court. For example, it will deter people in future now that Milosevic has been taken into custody, although not yet for trial in that court, it is true. Nevertheless, the principle is illustrated that a head of state who wants to wage aggressive and barbaric campaigns against civilians can no longer shelter behind the idea that, whoever else carries the can for the orders that he gives, he will be immune.
The ICC will embarrass countries into taking action that they otherwise would not take. That point has been sufficiently illustrated already. For example, would the Latin American countries have harboured so many terrible Nazi criminals for so long if a court had been available to put pressure on them to give up those criminals? Would so many Nazis have been aided by countries and organisations, and even some parts of the Catholic Church, to escape the retribution that they so richly deserved?
Would members of the SS Galicien division have been allowed into Britain, or having been allowed to enter--perhaps relatively innocently, although I find that hard to credit--would they have been allowed to settle here when questions were being asked about the wartime conduct of so many of the division's members? As a Labour Member said previously, would Idi Amin have found it so easy to continue to have sanctuary in Saudi Arabia?
The fourth reason that I mentioned was to force other countries to try criminals in their midst. Once again, the recent arrest of Milosevic shows the benefit of that.
I should like to spend a moment on the fifth reason, which is to prove that killings actually took place. We know only too well the evil of historical revisionism and of the activities of the Holocaust review organisations and of propagandists such as David Irving, Ernst Zundel in Canada and Fred Leuchter in America--who purported to produce a "scientific" report that the gas chambers had not really been gas chambers at all.
I was deeply impressed by the foresight of the late Lord Bernstein and the late Alfred Hitchcock. When the death camps were opened at the end of world war two, they anticipated that the horror was on such a scale that future generations might fail to believe that it had ever occurred, so they produced the unforgettable film "A Painful Reminder". They visited the camps before the bodies were all buried and they took, with the widest-angled shots possible, a comprehensive cinematographic record of what was found, so that it would become as difficult as possible to deny that the atrocities had taken place.
The final reason is to bring out aspects of the truth other than the fact that killings had taken place. I was reminded of that by an article in The Times today under the heading "I funded Bosnian war, says Milosevic". It reports that Milosevic
- "had conceded for the first time that he had covertly funded the Bosnian and Croatian Serb armies."
-
When he was asked to account for all the money that had disappeared, he said that
"the details should be kept a state secret, since the money went to finance Serb rebellions against the secession from Yugoslavia of Croatia and Bosnia, as well as to Serbian security troops and 'anti-terrorist forces'.
The funds, not included in official budget figures, were designed to circumvent the international embargo against Yugoslavia, he added."
Even before I deal with the issue of war crimes, there are some other problems with the concept of the court. Those problems have been alluded to and I shall run through them in short order. The first is the concept of "victor's justice". That term has been applied to the Nuremberg tribunals, but no one would deny that the 20 volumes of detailed evidence of Nazi crimes that was gathered at Nuremberg are anything other than an historical source of the first significance. The record of the Nuremberg tribunals makes it extremely difficult to deny the nature of the Nazi regime--and, after a gap of 50 or more years, there would be no shortage of people who would try to do that if they thought that the evidence was not against them.
There is also the argument about the "clean hands" of those sitting on the tribunals. It is true, for example, that Stalin had a judge sitting at Nuremberg. However, the fact that we cannot bring everyone to justice does not mean that we should not bring to justice those people who are capable of being put on trial.
Perhaps a more serious objection relates to the issue of enforcement. Some criminals are too strong to be brought to trial. However, the idea is at least put in the back of their minds that, if one day in future they lose power, they may then be pursued and be held accountable for their actions. The court is still worth while from that point of view.
Problems of access, such as to the atrocities in Afghanistan and Chechnya, have been touched upon, but who would have thought that the time would ever come when dictators such as Todor Zhivkov in Bulgaria or Erich Honecker in East Germany had to face the consequences of their disgraceful activities? That time did come and the court will make it more probable that it will come for other people.
There is little disagreement about the court in respect of the issues of civilian atrocities, genocide and crimes against humanity. The real concern applies to whether normal military action or honest mistakes made during normal military action could end up being defined as war crimes. I sympathise with the doubts expressed by my hon. Friends on the Back Benches. We only have to consider the way in which some recent legislation abuses the concept of human rights to realise that people fear that the definition of a war crime could be stretched too far and thus undermine the principles that the court is being established to support.
Mr. Hawkins: My hon. Friend touches on an important matter. Does he agree that members of all political parties
in this House and in the other place often express amazement at the frequency with which the decisions of successive British Governments are challenged in the European Court of Human Rights? Does he also agree that, despite the best intentions, there is a great danger that something that we would regard as legitimate might be ascribed by a rogue state, which is nevertheless a nominal signatory to the new statute, as a war crime and could result in lawful actions by our armed forces being brought before the new court?
Dr. Lewis: That is precisely my point, although my hon. Friend puts it more succinctly. I hope that Labour Members can tell from the sincerity of my positive approach to the Bill that my reservation is also sincere. My hon. Friend articulates my concern well.
It is often said that the road to hell is paved with good intentions. There is also a danger that the devil makes work for idle hands. The argument is finely balanced. There are advantages to a standing court: for example, it helps to avoid disputes over whether trials are held retrospectively, which is one of the criticisms of Nuremberg. The disadvantage is that people might be tempted to run to a standing court with complaints that would not be entertained if it meant establishing an ad hoc court to consider a specific problem. I am inclined to think that the balance is in favour of a standing court.
On military action and warfare, there is a long and sad history of attempts to outlaw aspects of war by international law. The Washington naval treaty and the Geneva gas protocol of the 1920s were subsequently flouted. It was deterrence that prevented gas from being used by the combatants in the second world war. The experiences of the Jewish people who fell under Nazi control--including my relatives and those of the hon. Member for Bethnal Green and Bow (Ms King)--prove that it was used against the helpless. Similarly, in 1939, at the outset of the second world war, our bombers were instructed not to bomb land targets for fear of collateral civilian casualties. They bombed ships only at sea. In a real war, such restrictions soon go out of the window. My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) has ably made the point that the principle of nuclear deterrence could be challenged.
I have a final question, to which I would appreciate a response. What happens if the United Kingdom tries and acquits a member of our armed forces who has been accused of a war crime? Is that the end of the matter, or can the ICC decide that it is not satisfied with the verdict and that it will intervene?
My hon. Friend the Member for Reigate (Mr. Blunt) drew my attention to article 17 of the Rome statute, which states:
- "the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;"
- "(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute".
Conservative Members do not want killers to escape justice, or people who commit crimes against humanity to laugh in the face of world opinion, as they have done in the past. However, in our pursuit of thoroughly admirable aims, we do not wish innocent service men to be brought before an international court simply because the processes in our democratic society, whereby they have been found not guilty, are deemed insufficient by that court.
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