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“The provisions of the Bill extend to the whole of the United Kingdom. As far as Scotland is concerned, the Bill relates only to reserved matters.”
I do not quite understand what that means. Perhaps the Minister will explain why the updating of the legislation should be a reserved matter.
The explanatory notes continue:
“Under clause 3, there is power to extend the provisions to the Channel Islands, the Isle of Man and British overseas territories.”
Do the Government intend to extend that power, and if so, when? Would it not be logical to do everything at the same time?
Let me turn briefly to an issue on which I have been intervening this afternoon: the issue of punishment for abusing those labouring under the protection of the UN, in whatever guise, and for misusing the emblems in a time of warfare. We have discussed what punishments are available. According to the research paper I have here:
“Clause 1 of the current Bill and its Schedule would add the red crystal to the list of emblems protected by the 1957 Act.”
“A grave breach of the Protocol (perfidious use of the emblem for the purpose of killing injuring or capturing an adversary during an international armed conflict) would be punishable by up to 30 years’ imprisonment (or, if the offence involved murder, life imprisonment).”
I wonder whether the Minister can cite, under the existing legislation—I thought she might be rising to give me an answer, but no such luck—a single example of a grave breach of the protocol being punished either
with 30 years’ imprisonment or by life imprisonment. Assuredly there have been such grave breaches, and they continue to take place.
“Unauthorised use of the emblem will be punishable by a fine of up to level 5 on the standard scale (currently £5,000) and the court may order the forfeiture of any goods or articles upon or in connection with which the emblems or designs were used.”
I do not think the courts will do much in some backward valley in Afghanistan if someone is driving around with a red crescent, or even a red crystal, painted on a pick-up truck, but here we have a wonderful international legal framework to punish those who abuse the UN, either by misusing its symbols or by attacking those who are protected under them.
Mr. Greg Knight: Clause 1(5) refers to “a design or wording”. I mentioned that when I spoke earlier.
Mr. Swire: Indeed, and my right hon. Friend made an extremely good point. His quick trawl on the internet produced, straight away, two examples of companies which I think would be adversely affected by the introduction of the red crystal. It is stated somewhere in the Bill that it would have no financial implications—a standard statement in Bills—but it could clearly have adverse financial implications for those two companies, and perhaps for many others, including the rock group cited by my right hon. Friend. I think that the Minister needs to drill down into this issue, and come up with some answers.
This afternoon, we have heard the history of the proliferation of emblems and about the countries that wanted to adopt symbols over the years—those that tried and then dropped the idea. It is regrettable, although understandable, that we have embarked on this journey in that it involves diluting the brand of the Red Cross. We have to live with it, and I of all people understand the sensibilities of those countries to which a cross is in some way offensive or not necessarily representative. It is regrettable but of course it is understandable.
We spend a lot of time lauding the incredibly important work that aid workers and non-governmental organisations do around the world, often with little protection. What is most important at this point is that, rather than making gestures in order to accommodate the arrival of a new sub-branch, if you like, of the UN, we spend a little time remembering that a lot of the protection offered to UN agencies under international law is simply not available to a range of other organisations staffed with very brave men and women throughout the world. They have no protection under international law or certainly not to the same degree as the UN. However, a law is only as good as its enforceability or the proven protection that it provides, so we owe it to all those working under the family of the UN—be they working for the Red Cross or the Red Crescent, or for the red crystal in future—to ensure that if they are in any way abused in warfare, the perpetrators of that abuse will be brought to the highest courts of the land, perhaps the International Criminal Court in The Hague or somewhere else appropriate; or that a fine, if a fine it is to be, is imposed and seen to be imposed, so that these symbols, regardless of how many there are, mean the same thing to people throughout the world.
3.12 pm
Mr. John Hayes (South Holland and The Deepings) (Con): This debate is about symbols, protocol and convention. In the end, it is about the meaning of all those things. Much of the work of a politician is in discerning the difference between symbols and truths, spin and substance, emblem and reality, so I want to start my brief contribution by speaking about symbols, for that has preoccupied many of the previous speakers. Jung said:
“Symbols are ideas. Whenever we use one we are pointing to the idea behind that symbol”.
“the sign is always less than the concept it represents, while a symbol always stands for something more than its obvious and immediate meaning.”
One of my inspirations, my favourite thinkers and writers, G. K. Chesterton, said specifically on the cross:
“in criticising Christian symbolism, they talk much of dead churches and decaying creeds. They talk of a creed as a cant but their own talk itself is cant. They do not dislike the cross because it is a dead symbol, but because it is a live symbol”—
and so it is with the symbols that we are debating today. They have meaning beyond their image. They have a significance that is widely understood; they are indeed alive. No more could be said—or perhaps needs to be said—about the red cross than to point out that it is so widely recognised and so universally understood as to have a significance that is special and worthy of protection.
I shall speak at some length about the Geneva convention, which is critical to this debate, and about the 1957 Act, but before I do so perhaps it is worth debating for a moment what was said in the other place about this Bill. The Minister of State at the Foreign and Commonwealth Office, Lord Malloch-Brown said:
“the scope of the convention is relatively narrow, applying to only two categories of UN operations: those maintaining or restoring international peace and security; or those where the Security Council or the General Assembly has declared that there exists an exceptional risk to the safety of the personnel participating in the operation.” —[ Official Report, House of Lords, 27 January 2009; Vol. 707, c. 190.]
The Bill is indeed narrow. None the less it is important that we understand the context in which we debate it. For that reason, I want to speak at some length, although not at inordinate length, about the 1949 Geneva convention, which is critical to our consideration and about which I have to say, without meaning criticism of hon. Members, we have heard too little so far this afternoon.
The following briefly summarises the provisions of the 1949 Geneva convention that govern the use of the red cross, red crescent and, as was mentioned earlier, the red lion and sun flags. Geneva I governs land warfare. Geneva II governs warfare at sea. There are also Geneva III and IV, but they have no provisions concerning flags, so we must not waste time on them today.
Article 138 of Geneva I provides for the use of the Swiss federal arms in reverse colours—the red cross on a white ground—as the
“emblem and distinctive sign of the Medical Service of armed forces.”
That was originally provided for in article 7 of the first Geneva convention. As Members will know, that was signed on 22 August 1864. The red crescent—or red lion
and sun in lieu of the red cross—was recognised for use by countries already using such devices when the 1949 convention was adopted.
Geneva I, article 39, requires the emblem—the red cross and those others—to be
“displayed on the flags, armlets and on all equipment employed in the Medical Service.”
The same provision is contained in Geneva II, article 41.
Geneva I, article 42, limits the display of the distinctive flag of the convention to
“medical units and establishments as are entitled to be respected under the Convention”.
It is permitted to be displayed in conjunction with the
“national flag of the Party...to which the unit or establishment belongs.”
The 1864 convention required it to be displayed with the national flag. When medical units fall into the hands of the enemy, they display only the flag of the convention. Indeed that is detailed, as Members will know, in the Geneva Conventions Act 1957, about which I shall speak at some length later. It was specifically referred to in the Second Reading debate on that Bill, which I shall also be speaking about later.
Geneva I, article 44, bans all uses of the red cross or equivalent emblems, including flags, other than
“to indicate or to protect the medical units and establishments, the personnel and material”
under the Geneva conventions, except that the national Red Cross and Red Crescent Societies may use the emblems in peacetime for other activities in conformity with the principles of the Red Cross Movement. That reinforces the universality that I have argued previously is critical to our considerations today. In wartime, they may use the emblems for their activities only if they are clearly not implying the protection of the convention. International Red Cross organisations such as the International Committee of the Red Cross may use the red cross emblem at all times.
Geneva II, article 43, requires hospital ships to make themselves known by
“hoisting their national flag and further, if they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted. A white flag with a red cross shall be flown at the mainmast as high as possible.
Hospital ships which...are provisionally detained by the enemy, must haul down”
“Coastal lifeboats”
operating from a base which is occupied by the enemy may
“continue to fly their own national colours along with a flag carrying a red cross”.
Mr. Greg Knight: In the case of a ship, which is by its very nature moving and may move from one arena to another, where the favoured emblem is different, it might be necessary for the ship to haul down the red cross and haul up the red crystal. That process might have to be repeated for each change in territorial waters.
Mr. Hayes:
That is indeed a problem. It was partly such arguments that stimulated the debate some 60 years ago, in which it was asserted with some force—for me, it was a compelling argument—that the red cross should be a universal symbol. My right hon. Friend will know
why that is not the case. In the early days following the establishment of the conventions in the 1860s the Ottoman empire objected to the use of the cross, and it was as a compromise that the red crescent was introduced. My right hon. Friend could still, however, make a compelling case for the universal use of the red cross.
Mr. Swire: Conversely, the wounded on board a hospital ship could come from a variety of religious backgrounds, and there might be reason to fly the red cross, the red crescent and the red crystal. Does my hon. Friend understand whether anything would prevent any vessel from being marked with the three main emblems?
Mr. Hayes: I have just been thumbing my copy of the Geneva Conventions Act 1957, following the first inspection. It states clearly in article 18:
“Civilian hospitals organised to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.
States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19.”
More pertinently perhaps, it continues:
“Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12th August, 1949, but only if so authorised by the State.
The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces”—
which addresses my right hon. Friend’s intervention—
“in order to obviate the possibility of any hostile action.”
There is a clear responsibility, whether on land or sea, for the states concerned to take all reasonable measures to ensure that a hospital or hospital ship is identified as such, so that no confusion can arise.
Mr. Greg Knight: Although it would not create a difficulty for a ship to fly the three flags at once, if the example given by my hon. Friend the Member for East Devon (Mr. Swire) were followed in respect of a vehicle and it had to carry the three emblems, they might have to be smaller in size in order to be accommodated, and would therefore be less easy to identify by aircraft flying overhead.
Mr. Hayes: That is true, and for that reason I draw to my right hon. Friend’s attention the further provision in article 18:
“In view of the dangers to which hospitals”—
and, presumably, mobile facilities and ships—
“may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives.”
The convention makes it clear that the eventualities described by my right hon. and hon. Friends are less likely to occur if adequate precautions are taken.
The plain red cross or red crescent flag is primarily used to identify medical units for military forces, as provided by the 1864 and subsequent Geneva conventions.
I have referred to the 1957 Act which supports the conventions. If I had more time, I would like to speak about the 1997 Act, but it would not please the House were I to continue for too long, so I shall not go into that in any great detail.
Although national Governments may authorise red cross or red crescent societies to use the flag provided, there is no possibility of confusion with the primary use of the flag. The convention also allows the various international Red Cross organisations, such as the ICRC and IFRC, to use the symbols as I described earlier. Therefore, the plain red cross is not a unique identifier of the ICRC. The basic right to use the red cross and red crescent flags does not derive from either of those organisations—it is the inherent right of all states that are party to the Geneva convention of 1949.
Having said that, there has always been some disagreement. I mentioned the disagreement that followed the original arrangements, when there was a tension between the members and the Ottoman empire, which led to the compromise of the red crescent, but there have been many disagreements—almost for the whole life of the conventions—about the precise use of the red cross and, subsequently, the red crescent, and indeed about symbols per se.
Earlier in the debate, my right hon. Friend the Member for East Yorkshire (Mr. Knight) talked about the possibility of many emblems being used and the confusion that might ensue. That specific suggestion has been made over the years by several states, not in order to cause confusion, but as a means of representing national interests in those parts of the world where the use of a crescent or cross might be seen to be invidious. We could speak at some length about Israel in that regard. There has been significant tension, because Israel would prefer to use a variation on the star of David. Of course, the obvious difficulty with that route is that it is Israel’s national emblem—indeed, it is on its national flag—and the confusion that that would cause speaks for itself. The virtue of the red cross and the red crescent is that they are detached from the symbols of nation states; they have the universality that I describe.
Mr. Hayes: My hon. Friend the Member for West Chelmsford (Mr. Burns) is anxious to intervene, but I must make progress, so I shall frustrate him on this occasion.
Mr. Swire: I am most grateful to my hon. Friend for his blatant favouritism in giving way to me. What he says about Israel is absolutely right. Indeed, in 1949, when Israel signed the Geneva conventions, it clearly said that
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