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6.40 p.m.

Lord Mayhew: My Lords, supporters of war crimes trials are fortunate indeed to have as their leader, and chairman, someone who speaks not only in a most agreeable and persuasive manner but who was also a Home Secretary—and a much better Home Secretary than Sir John Simon whom he mentioned.

I confess that I had hoped that the experience that we have had since the passage of the Act might have modified the enthusiasm of the noble Lord, Lord Merlyn-Rees, for pursuing the war crimes trials. I think, for instance, of the experience of other countries. I recall that during those debates the noble Lord and others urged us to follow the example of Canada, Australia and Israel. Experience since confirms all the worst fears of those who opposed the Act at that time. All the trials were disasters, especially the one in Israel, which

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illustrated in the most dramatic way how right those noble and learned Lords were who said that it is impossible to identify people after all this time.

The trial of Demjanjuk was a show trial. It was televised. Schoolchildren were bused in. I recall seeing on the television, on the BBC news, the eye witnesses advancing on the accused, Demjanjuk, saying, with complete sincerity and conviction, "That's the man, how could I possibly mistake him?" The Israeli judiciary, and everyone, now knows that those witnesses were wrong. On that occasion it did not stop Demjanjuk being sentenced—to death, as I recall. But it was a tremendous warning of how such war crimes trials can go wrong and it fulfils all the forebodings that we had at the time. I had hoped that that might have modified the attitude of the noble Lord, Lord Merlyn-Rees.

Other events have occurred since the Act was passed. We have had a revelation of the amount of money and the substantial quantity of skilled servicemen who have been devoted not to anti-drug or anti-terrorist activities in the United Kingdom but to searching out in remote parts of Eastern Europe people who might have committed war crimes. Those people were not even British at the time.

Since the Act, there has been the passage of time itself. The noble Lord, Lord Merlyn-Rees, said—I believe I quote him—"I am not worried about delay". But we ought to be greatly worried about delay. Let us consider the Hetherington report which was the basis upon which the Government took up the cause, framed the Act, and pushed it through. The report stated,

    "Given the age of the suspects and witnesses any proposed legislation should be introduced and brought into force as quickly as possible".

That was stated five and a half years ago. In describing their investigations in eastern Europe, the authors of the report stated:

    "The greatest difficulty we encountered was simply the age of the suspects and witnesses".

That was their finding, six and a half years ago.

The offences were committed more than 50 years ago. The noble Lord states that he is not worried by the delay. But, of course, that is not the end of the delay. Justice will be further delayed. Let us assume for a moment that the Crown Prosecution Service puts a case to the Attorney-General and the Attorney-General judges in favour of the prosecution. That might occur within a month or weeks. But what then, my Lords? The defence starts to build its case. It will have to go to eastern Europe, with translators and interpreters. It will have to examine records and archives. It will have to start a desperate, almost certainly futile, search for defence witnesses. I should have thought it likely that all possible defence witnesses will either be untraceable or dead.

Eventually the trial may begin. The Act contains some unprecedented aspects, especially in relation to retrospection. Therefore there will be an enormous number of points of procedure during the trial. The trial will drag on for a long time. When the verdict is eventually reached, how old will the accused be? If he had a rather senior post when his alleged crime was committed, he will at that time be in his nineties. If he

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were a smaller fry, he will be in his eighties. That is too old. It is far too long since the offence was committed. People's memories are wholly unreliable. Defence witnesses cannot be found. Such a prosecution is wrong.

Those of us who as soldiers took part in the liberation of Europe were brought very close indeed in the concentration camps to the horrors of which the noble Lord spoke. However, despite the appalling nature and seriousness of the charges, the passage of time has made it, in my view, not only unfair but actually indecent to bring charges under the Act.

Perhaps I may say a word about the attitude of the Government. In this House Ministers have not attempted recently to defend the Act or its purposes. Their constant cry has been, "It's on the statute book. The Commons passed it. Therefore we have to carry it out". I believe that that is a little disingenuous. After all, it was the Government who started it. The author of the report, Sir Thomas Hetherington, was asked at a meeting here, "Seeing that the Government ended war crimes trials with the support of all parties in 1948, what has caused this sudden recurrence of a demand for war crimes trials?" He put as one of the major factors the visit to Israel of the then Prime Minister, the noble Baroness, Lady Thatcher. It was perfectly legitimate. I do not complain. However, the fact is that the Government took the initiative in producing the Bill. They passed the Bill; they supported it in both Houses. They are now relentlessly seeking to implement it. The Government cannot avoid responsibility. They cannot simply say, "The House of Commons passed it and we are carrying out what is on the statute book".

Furthermore, the Bill before us now is not on the statute book. We are in a new situation as a result of the passage of time and the Government are perfectly free if they wish to support the Bill. Nothing that the House of Commons has done should stand in their way if they wish to do so. All that the Government have done meanwhile is to devote a lot of money and much badly needed trained security personnel to investigate atrocities committed more than 50 years ago in remote parts of Eastern Europe by people who were not then British. It is hard to imagine a more perverse sense of priorities than that.

6.49 p.m.

Lord Jakobovits: My Lords, this is the third time that we are debating the subject of war crimes. Looking through the list of speakers today, it appears to me that those who are taking part have previously expressed their opinions—or at least the great majority of them. It appears from the speeches made so far that the opinions have not changed, nor is it likely that they will because these are matters of deep conviction. I wonder therefore why the debate has been introduced and why efforts are now being made in the supplementary provisions to undo what Parliament has decided by an overwhelming overall majority on two previous occasions.

The noble Lord, Lord Mayhew, cited the experience of Israel as an example of the dangers involved in bringing such prosecutions. I think that it proves the opposite. It proves that despite the legislation, the courts are still powerful enough to discern the truth, or at least

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to question allegations if they cannot be absolutely proved. Therefore, in that case, as in so many other cases, the law has not been changed. None of the countries changed its legislation; all that was done was to apply the rigours of the law to ensure that there should be no miscarriage of justice.

But let me come to a more fundamental point. Even though I too have spoken in the two previous debates and can offer little originality in my contribution to the renewed discussion, I wish to add a couple of questions. Is it really suggested that the millions of victims are any less dead now than they were 50 years ago or, for that matter, than they were a couple of years ago when Parliament overwhelmingly passed certain legislation? Is our debt to those who have been exterminated with such fearful and unprecedented horrors any less now than it was then?

That leads me to perhaps a more topical question. As this current year is about to conclude and we usher in the new year 1995, the world will observe the 50th anniversary of the liberation of Auschwitz and Majdanek, of Dachau and of Belsen, when we first discovered the horrors that had occurred. This commemoration will be marked throughout the world. There will be gatherings in which the world will be reminded of what took place and what the rest of the world tolerated at the time. In Europe in particular, occupied as it was, there will be countless efforts made to recall, remind and remember. Shall we in this country—because by the grace of God we were spared occupation by the Nazis—be the only or nearly the only European country that will move in the opposite direction? Instead of recalling and perpetuating what happened, shall we expunge it and say that because a number of years have passed we are no longer interested in the execution of justice? It would be inconceivable that we should be the odd man out in this impending year of the 50th anniversary by giving a signal that we care less than others who suffered so much more than we did in this country.

I believe that here I can apply the final verse of the Book of Ecclesiastes the Preacher, written, as our tradition has it, by the wisest of all men. He said:

    "This is the end of the matter; all has been heard. Fear God and observe His commandments, for this is the whole duty of man".

None of the commandments is more sacred than the one in the fifth Book of Moses:

    "Justice, justice shall you pursue".

Justice needs to be pursued, and not only done when it comes our way.

I hope that even if we never find a single criminal whose guilt can be proved by all the rigid tests that we apply—and rightly—at least our statute books will record that we will for ever remember the ultimate in injustice and in cruelty that has been perpetrated and will wish to count ourselves during the coming year among those who will remember, will recall and will warn future generations that mankind will never again tolerate that fearful slight, not just on human rights but on human life by the million.

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I believe that by sending out this message from this venerated House to our country and to the rest of the world we shall be counted among those who have not failed in the fulfilment of the law—to ensure that justice will be pursued even if it cannot always be done.

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