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I hope that when the Minister responds to the debate she will elucidate the distinction between the two conventions, which intrigues me. When we talk about the red crystal, we are talking about the ratification of the third additional protocol to the Geneva conventions, whereas in the case of the amendment to the United Nations convention on the safety of United Nations and associated personnel, we are talking about the ratification of an optional protocol to the original convention of 1994. I am no lawyer, let alone an international lawyer, and I am genuinely intrigued to hear whether the Minister can elucidate the distinction between an additional protocol and an optional protocol. That is not an academic inquiry. We need to be clear in
our minds, when we enact the legislation, about whether the difference in title means that there is a difference in the legal effect of the two parts of legislative reform in the Bill.
Mr. Greg Knight: I wonder whether my hon. Friend could help the House. Who will decide whether the cross or the crystal is used? Will the Foreign Office have a list of sensitive souls who may be offended by the cross, and will it advise aid workers on when to use the crystal, or will someone on the field of battle make that decision? Does he know the answer to that? The Bill does not make it clear.
Mr. Lidington: No. That is a point that I want to come on to in a little while. My right hon. Friend asks a serious question. My understanding—I am sure that the Minister will correct me if I am mistaken—is that in respect of British servicemen and women participating in a humanitarian enterprise conducted under the auspices of the United Nations and falling within the scope of the optional protocol, it would be for the British authorities, or the appropriate commander, to decide what symbol was used. On the general use of emblems more widely than in United Nations humanitarian and other operations, I assume that the decision would be taken by the national society concerned, as it is now. In our case, that is the British Red Cross. It will be for the Red Cross and Red Crescent societies of various countries to decide the symbol, or combination of symbols, that they wish to employ.
Mr. Speaker: I call Jerry Wiggin.
Bill Wiggin: It is Bill, Mr. Speaker, but that is perfectly all right. My father would love to have been called. He longs to be back here, but it seems a prudent family decision that there should be one Wiggin in the House at a time. Thank you anyway, Mr. Speaker.
Does my hon. Friend the Member for Aylesbury (Mr. Lidington) agree with me that the Bill is not about deciding which symbol—a red cross, crescent or crystal—is used, but about making sure that legislation is in place to prosecute people who ignore that symbol? The Bill is about prosecuting people in the UK; that is why it applies to our Government. It therefore matters very much who decides whether our troops open fire on somebody displaying a diamond shape. Does he feel that the measure will really help British troops in their peace-making efforts, or could it simply add to the confusion in the heat of battle, thus putting British servicemen in the dock for trying to do the right thing, which they usually do?
Mr. Lidington: There are two elements to my response to my hon. Friend’s question. As I understand the Bill, the provision will permit the use of the red crystal alongside or in place of the red cross and red crescent, and will therefore provide an additional symbol that will attract international protection and the respect for that protective function by means of criminal sanctions for those who breach it and for those who, in the terms of the original convention, make “perfidious use” of it—in other words, those who use the protective symbol when they are engaged in military or terrorist operations.
The Bill also provides protection in British domestic law against the use of the red crystal symbol for any purpose other than to designate a genuinely protective humanitarian body—in our case, the British Red Cross. So, as I understand it, the legislation would outlaw the use of the red crystal for any kind of business or commercial purpose. Again, if I am mistaken, I am sure the Minister will intervene or address the point in her concluding remarks.
My understanding is that the additional protocol concerning the red crystal has taken a great many years to negotiate and that there have been many false starts. I hope that when the Minister responds to the debate, she will be able to spell out in a little more detail exactly how the additional protocol will finally allow the vexed issue of the red star of David or red shield of David—I have seen both terms used—to be treated in future.
My understanding is that, under the additional protocol, the red star of David will not be treated as on a par with the red cross, crescent or crystal, in that its display will not automatically invoke the right to protection which those other symbols guarantee, but that it will be open to Israeli and, if they so choose, other humanitarian organisations to use the red star of David as an additional indicative symbol of their humanitarian purpose, so that, for example, an Israeli ambulance or relief lorry might travel into an area where there might be a threat of violence displaying the red star of David on the side of the vehicle, but with the crystal clearly displayed on the roof of the vehicle as a signal to aircraft that it was entitled to international protection. That is my understanding, having read the briefing on the Bill, but if the Minister wishes to correct me, I am happy to let her do so.
Bill Wiggin: I am curious about what sort of threat might come from the air to the Israelis, in particular.
Mr. Lidington: In any humanitarian operation, relief workers or troops escorting them are right to be alert to the prospect of attack from any direction, including from aircraft. If my hon. Friend looks into this, I think he will find that there have been occasions where there has been so-called friendly fire, where humanitarian vehicles have been attacked, deliberately or inadvertently, from the air. Clearly, the purpose of displaying the humanitarian symbols prominently is to deter and prevent any such attack.
Bill Wiggin: My hon. Friend is making the point beautifully. That is why I turned up this afternoon. If the air power in question is Israeli, which it will be, because there is no air force presenting any sort of threat to an Israeli humanitarian effort, surely the right sort of symbols will be the ones that are most familiar to Israeli pilots. That is true throughout the world. We all know why the red cross is so important. If we were combatants of any sort, we would want to be protected if we were injured. We need to make sure that the sort of people who would ignore that do not take part in such conflicts. Therefore putting a diamond shape on the roof of an Israeli truck to prevent Israelis from blowing up their own truck is unnecessary. They could stick with any sort of Israeli symbol for the red cross, whether it was a star of David, a red crescent or any other symbol. The provision is entirely unnecessary in that example.
Mr. Lidington: A new symbol, agreement on which has allowed the vexed question of the position of the Israeli and Palestinian humanitarian relief societies to be settled, and allowed them to become part of the global family of Red Cross and Red Crescent societies, is a compromise worth having.
Although my hon. Friend is tempting me into my other responsibilities as middle east spokesman, I will not go down that track too far, but I shall respond to the point that he made. If I can look forward to the future of the middle east with greater optimism than he was able to voice in his question, perhaps we could see a day when Israeli vehicles participated in UN multinational humanitarian operations. If the legal framework that we have provided for in the protocol and now in the Bill makes it possible for that to happen, that is a constructive step.
I have two other questions to the Minister about the use of the red crystal—
Mr. Chope: Before my hon. Friend moves on to that point, can he give me some assurance that the red shield of David, which was specifically outlawed following the 1949 diplomatic conference, will not be brought back into the equation?
Mr. Lidington: It is for the Minister to give a detailed response to my hon. Friend’s question. My understanding is that it will be possible to use the red shield as an indicative symbol, but that it would not have the status of a protective symbol. It would have to be used alongside the red crystal, which would have to have the greater prominence, particularly on the roofs of buildings or vehicles, in order to make sure that that protected status was understood.
Mr. Chope: In that case, does my hon. Friend share my concern that the provision is an unnecessary complication? We are talking about introducing a third symbol, the crystal, but he seems to be saying that notwithstanding that, the Israelis and other countries will carry on using other symbols as well.
Mr. Lidington: That is a complication, but it is a necessary one. The more I delve into the politics of the middle east, the more I find the need for unavoidable complications. One’s wish that the world were simpler is very often defeated when looking at that region.
My second question to the Minister about the red crystal concerns its relationship with the red cross and the red crescent. I heard her say that the intention was that the crystal should not displace those traditional symbols, and I know, too, that in terms of indicative domestic use it will be a matter not for the Government, but for the British Red Cross to decide how to use the symbols in this country. However, I want to put on the record my strong hope that it will not use the opportunity provided by the inclusion of the red crystal in the list of protective symbols to go down the route of saying, “Let’s have that instead of the red cross.”
The British Red Cross and the International Committee of the Red Cross do a first class job. However, the one thing that I find niggling about the British Red Cross from time to time is its neuralgia about even the slightest reference to religion—right down to banning Christmas cribs from the windows of its charity shops. That is
unnecessary; I do not think for a moment that such displays bring its impartiality into question. I hope that it will stick to a tried and trusted symbol that the overwhelming majority of the British public respect and value, regardless of their ethnic and religious traditions. The symbol is also regarded with great pride by the army of volunteers and fundraisers who have participated in the work of the British Red Cross for so many years.
My final comment about this element of the Bill takes me to the point raised by my right hon. Friend the Member for East Yorkshire (Mr. Knight) about the Human Rights Act 1998. As I understand it, the Bill prohibits the use of the red crystal for any business or commercial purpose. I would like an assurance from the Government that they truly did their homework on that issue before bringing the Bill to the House. Can the Minister say in terms that the Government have checked that they will not be knowingly extinguishing the patent rights of any individual or company, and that the Bill will not suddenly cripple the trade of some small business that has been innocently using the red crystal as a marketing device or a symbol of its corporate image for many years, only to find itself overtaken by this legislation?
Clause 2 deals with the optional protocol to the convention on the safety of United Nations and associated personnel. In terms of British law, we are talking about an amendment of the United Nations Personnel Act 1997. The amendment is designed to address the fact that the protection given by the current convention is fairly narrow. However, articles 1 and 2 of the original convention show that the definition of a United Nations operation is tightly drafted. To qualify for the protection of personnel, the operation has to be
“for the purpose of maintaining or restoring international peace and security; or...Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation”.
Clearly, that phraseology rules United Nations humanitarian assistance and relief operations outwith the scope of the original convention. Although it could be argued that there is a safeguard in the reference to the power that the Security Council and General Assembly have to declare that there is an exceptional risk to the personnel participating in the operation, I believe that there have been only about four occasions since the convention came into force when that saving clause has been applied in practice.
Everyone is clear and agrees that there are plenty of United Nations operations that do not qualify for protection but ought to. I gladly join the tribute paid by the Minister to the courage of military personnel and civilian workers who work under the United Nations banner in the most difficult circumstances, trying to bring aid and humanitarian relief to people in desperate straits and often in the midst of the most savage conflicts in different parts of the world.
The Bill is extraterritorial in scope; it creates offences in the United Kingdom in respect of offences committed elsewhere in the world. Section 1 of the United Nations Personnel Act 1997 defines the offences as ones committed outside the United Kingdom. One detail that troubles me is that the Bill does not seek to amend the list of criminal offences included in sections 1 and 2 of the
1997 Act. I am sure that the Minister knows only too well that since 1997 there has been a long series of criminal justice Acts. We have seen the creation of a long list of new offences and the redefinition of others. I am therefore genuinely puzzled about why the Bill does not seek to amend the list of offences in sections 1 and 2 of the 1997 Act, to bring that Act up to date. New terrorism offences have been created and I would have thought that they would apply to the Bill, especially as the terrorism legislation brought in by the Government specifically includes offences committed overseas and not just those committed here. Why has there been no amendment to the original list of offences in the 1997 legislation?
My second area of questioning is about the definition of United Nations operations. The Bill amends the definition of a UN operation to add in the category of
“delivering humanitarian, political or development assistance in peacebuilding and delivering...humanitarian assistance.”
We deserve more detail from the Government about what is meant by “peacebuilding”. The original UN convention carefully defines peacekeeping operations. There was much argument and debate among the members of the United Nations before agreement was reached on the precise wording of the optional protocol. It would help us to understand the reference to “peacebuilding” if the Minister filled us in later about what happened during those negotiations and about what the member states of the UN had in mind collectively when they agreed on the use of that term.
Thirdly, I would be grateful if the Minister could explain the reasoning for the opt-out that is explicitly included in clause 2(4) in respect of operations to deliver emergency humanitarian assistance in response to natural disaster. I know that the Government have simply imported it; it is an opt-out that is included in the text of the optional protocol. What are the reasons for that opt-out? I simply cannot understand why any country in any part of the world should think it necessary to disapply the protection of international law from people who are working on behalf of the UN to deliver emergency humanitarian assistance following an earthquake or some other natural disaster.
We had a fairly recent case of that; as I understand it, one reason that people became so dissatisfied with the tight definitions of the convention was that it failed to offer protection to the relief workers who supplied food, medicines and emergency accommodation to the victims of the Boxing day tsunami a few years ago. The optional protocol and the Bill that implements it would appear to provide an opt-out that any country could exercise, applied to its territory, when people were sent in to respond to just such an emergency. I do not understand the logic of any country’s seeking to have such an opt-out.
It seems to me that there are still some problems with the definition of UN operations, because, even with the additions proposed in the Bill, they basically remain the same as those set out in articles 1 and 2 of the convention. Let me give a few illustrations of those outstanding problems. The Foreign Affairs, Defence and Trade Committee of the New Zealand Parliament, which investigated the optional protocol, pointed out that the original convention
“only covers United Nations operations, and”—
this seems to me to be the important point—
“excludes regional peacekeeping operations or peacekeeping operations authorised by the Security Council to be conducted under national or regional command and control.”
That is a significant lacuna in the optional protocol and therefore, presumably, in the scope of the Bill.
We are now in a world where the UN in Sudan is seeking to work in concert with regional organisations. In the future, the UN might wish to work together with or to give authority to the African Union or other regional bodies to co-ordinate and lead both peacebuilding and humanitarian operations in particular parts of the world. If the concerns expressed by the New Zealand Parliament are correct, we have a gap in the protection we are offering to the people involved in such operations. That might be the product of a diplomatic compromise that was necessary to obtain agreement on the protocol, but I would be grateful for some further information on that point, especially given that the New Zealand Parliament concludes:
“The majority of casualties continue to be among personnel serving in operations not covered by the automatic application of the Convention.”
Another criticism was made by the international lawyer, Mr. Huw Llewellyn, who is quoted at length in the helpful research paper provided by the House of Commons Library. He said in an article published in International and Comparative Law Quarterly in July 2006:
“Emergency humanitarian assistance operations established by autonomous organizations within the UN system and by the Specialised Agencies do not fall within Article II(1)(b)”
of the optional protocol because
“They are not established by UN Charter bodies”
and the protocol makes specific reference to the charter. Mr. Llewellyn also pointed out:
“for example, operations established by the Food and Agriculture Organization (FAO), or by the World Health Organization (WHO) would not be within the scope of the Protocol.”
So those organisations would not be within the scope of the Bill, either.
Mr. Greg Knight: Surely my hon. Friend is highlighting a very good reason why the remaining stages of the Bill should be continued on another day so that he can table amendments to deal with that very issue.
Mr. Lidington: My right hon. Friend makes the good point that those are precisely the sort of issues that we ought to be able to explore with probing amendments and proper time allowed for debate and detailed ministerial response point by point, rather than today’s debate being truncated by the use of a guillotine.
Mr. Simon Burns (West Chelmsford) (Con): Does my hon. Friend think that the problems he has highlighted in those examples arise from a drafting error on the part of someone who has not thought the issue through or does he think they convey the true intention behind the legislation?
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