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7.29 p.m.

Lord Beloff: My Lords, few noble Lords would disagree with me were I to say that Lords Hansard does not have a very wide circulation in the Balkans. But it might be the case that someone who had perpetrated crimes of equal horror, if not on the same scale, as those alleged against the people we are discussing might come across our debates and say, "Well, it's all right chaps. I have only to get to England and I will find a group of British aristocrats and lawyers who have devoted themselves to preventing the prosecution of war criminals". War crimes, as we now know—though not on the scale of those that have been alluded to by the noble Lord, Lord Merlyn-Rees—are a feature of our world, and although we cannot prevent them, it is not for us, by indulging them, to make them more likely.

People have talked about the changes that have occurred in the past few years since 1988, when the current movement which led to the 1991 Act began, in the circumstances of some of the individuals involved. But more important are the changes that have occurred in the countries where these crimes were perpetrated. In 1988 those countries were still part of the Soviet bloc. It was obviously very difficult for our investigators to be sure of receiving the co-operation of the local police and legal authorities which they would require in order to amass the evidence that they were looking for. Circumstances in those countries have changed. We now have governments which are eager to do what they can to enlist the support and sympathy of the West. That makes it possible—I am not in the confidence of those who are in charge of the investigations—that it will not simply be a question of whether one old man can identify another. There may well be written records which were certainly not available five or six years ago and, as we know, our outlook on the Soviet Union itself—these crimes occurred not in Russia but in places which were then part of the Soviet Union—has changed enormously. For instance, the Katyn massacre was long maintained to be a crime of the Germans but has now turned out not to be so. It therefore seems that we are

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entitled to look at whether or not this is a suitable thing to do in the light of the legislation which is on our statute book.

It is curious, because the argument has been exploded so often, that the noble Lord, Lord Mayhew, continues to insist that the agreement to cease war crimes trials in the British zone of occupation in Germany is binding on the British Parliament in relation to crimes which were not committed by Germans, nor in that territory. The decision, which was a perfectly understandable one, to end those war crimes trials was, as the noble Lord, Lord Campbell of Croy, reminded us, a part of handing over criminal jurisdiction to the burgeoning democratic courts of the new German federal republic. Indeed, to their credit, the German federal government have been from time to time prosecuting, and are still prosecuting, war crimes, where the criminals have been identified. Though they may have a different system of courts and prosecution, as is true of other continental countries, no one has so far suggested that there have been miscarriages of justice there or in the war crimes trials that have taken place in France. In other words, this is a matter which deeply affects Europe and ourselves. As the noble Lord, Lord Jakobovits, said, for many of us it is a matter of conscience.

I agree with the noble Lord, Lord Lester of Herne Hill, that there are problems in raising the issue of the motive of these appalling crimes. On the issue of anti-semitism, I am sure that it has had its effect, in the debates both in this country and in Canada and Australia, on the attitude to these crimes, but that surely is not something which we should take into account. It was wrong to massacre Jews in eastern Europe because they were Jews, just as it is wrong to massacre people in Bosnia because they are Moslems. The identity of the victims is not the important point. The important point is the motive and the conduct of the crimes.

Therefore, I can see no reason why we should, as this Bill would demand of us, suddenly intervene politically in a process which is proceeding, albeit slowly. No doubt the delays will limit the number of prosecutions and possibly the number of convictions. But I feel that it would be sending a signal to every neo-Nazi in Europe if the House of Lords was thought to be in any way acting so as to condone crimes which, as I say, have been repeated but never on the scale of those with which we are dealing.

7.35 p.m.

Lord Shaughnessy: My Lords, to support this Bill, sponsored by the noble Lord, Lord Campbell of Alloway, is not to condone in any way the hideous, almost unbelievable, atrocities that happened in Europe in the course of World War 2. The noble Lords, Lord Mayhew and Lord Campbell of Croy, had a similar experience to mine at the end of the conflict in 1945 and witnessed the liberation—at least the freeing—of the concentration camps in north west Europe. That horrifying experience will be ingrained in the minds of many other noble Lords—it certainly is in mine—and therefore the question of even contemplating the mitigation of such crimes is not a factor so far as I am

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concerned. I do not view this Bill in a technical sense as many other noble Lords have, but as an attempt to limit the whole process which was inaugurated with the War Crimes Act 1991. The biggest problem is the passage of time and the possibility of a fair trial after 50-odd years which have passed since any of these crimes may or may not have been committed.

There is no use repeating the problems of age, identification and the possibility of finding reliable witnesses either for the prosecution or the defence. That has all been discussed before. But if the process continues, the problem becomes bigger. Each month and year that passes the difficulties which face mounting a fair trial are increased.

The noble Lord, Lord Houghton of Sowerby, in what might have been considered as a trailer for my speech, referred to the experience under the Canadian War Crimes Act. I shall refer only to a couple of instances in order to give examples. The first prosecution was against a man called Imre Finta. As a constable under the Nazi regime, he was accused of sending a number of people to their deaths in a concentration camp. He was apprehended. I am not sure whether he was actually indicted, but after his arrest under the Canadian War Crimes Act, it was about two years before he came to trial. The whole process of assembling evidence and whatever else which had to transpire, took that long. He came to trial and in May 1990, shortly before the War Crimes Bill was debated for the first time in your Lordships' House, he was acquitted. Because of a technicality, the Crown in Canada was granted the right to appeal to a higher court. That process had gone on since May 1990. In March of this year the case reached the Supreme Court of Canada, which denied the appeal and at last Finta was discharged.

That is a very long time for a man who is now 82 years old, who has lost his business, his house, and who is now in reduced circumstances, to go through such a process. I raise this point because if that kind of thing were repeated under the War Crimes Act which we are now discussing—it probably would not because I believe that an acquittal cannot be appealed under the British criminal system—it would be a very severe curtailment of human rights and compares to the dreadful experience which people experienced under the Nazis during the war with whom we are concerned in this exercise.

No other prosecutions have been mounted under the Act in Canada. One man was charged but the proceedings were stayed because of his ill-health. He was 83 years of age. Three other prosecutions were mounted and in two of the cases they were stayed because a witness became ill and unfit to attend the trial although, if there is a recovery, the trial can be started again. In another prosecution the key witness died. In a further prosecution an application was made to take evidence in the former Soviet Union, but that was refused by the trial judge. There has been no success in any of these trials in Canada. I shall not dwell on that any more.

As some noble Lords may know, in Australia an investigation under the Special Investigation Unit of the Attorney-General's department has been set up to go

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into the whole question of their war crimes legislation. In its final report, which took four years to prepare and which cost 40 million Australian dollars, the conclusion was that the unit found that 16 members of the Belgrade special police unit were allegedly responsible for the arrest and torture of thousands of Nazi opponents, including 856 inmates who migrated to Australia. On the evidence gathered, the SIU found it insufficient to sustain charges even though investigators believed that suspects were likely or highly likely to have committed war crimes. The report states that the others were too old or infirm to go to trial. That is the Australian experience.

I do not wish to detain your Lordships much longer. If retribution has to be made, we have to think of some other method. The experience of other jurisdictions would indicate that proceeding as Parliament has decreed with this legislation, which I accept, may not be successful. We have had no prosecutions mounted so far although we have been told that there are a number of possibilities. I believe that it was Bacon who said,

    "Revenge is a kind of wild justice, which the more man's nature runs to, the more ought the law to weed it out".

I have no proposals about how we should proceed. As I said, I think the Bill gives some hope that we can at least limit the continuing unpleasant legal situation that exists today. The noble Lord, Lord Jakobovits, quoted the Old Testament. The doctrine that is proposed in Exodus of,

    "Eye for eye, tooth for tooth",

has little relevance in this context. If we proceed under the existing War Crimes Act without limitation, we shall be doing an injustice to a hapless group of suspects, probably toothless and failing in eyesight.

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