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The Earl of Onslow: It seems that if we are to have this provision, with all the caveats laid out by the noble Lord, Lord Lamont--doubts which I share on purely practical and possibly cynical political grounds, and on the ground that the provision could lead to more deaths and destruction than others--the case set out by the noble and learned Lord, Lord Archer, follows as night follows day. In this context, his point seems perfectly reasonable and fair. As I say, I have other doubts, but that is a different question. I am trying to
narrow my view solely to the remarks of the noble and learned Lord, Lord Archer. I hope that the noble Lord, Lord Clinton-Davis, is now "unmesmerised".
Lord Lamont of Lerwick: We have been challenged to make some comments. Perhaps I may do so briefly, as a layman, on the view expressed by the noble and learned Lord, Lord Archer. I very much hope that the Government will not be persuaded by what has been said.
Perhaps I may make two points. It seems to me that there ought to be an element of reciprocality, notwithstanding what the noble Lord, Lord Avebury, said. The noble Lord talked about thresholds of violence. When one looks at the number of deaths in relation to the total population of Northern Ireland, it comes pretty close to the kind of threshold of violence and genocide that makes headlines in larger countries. We should see considerable disadvantages if American judicial authorities were to interfere in the affairs of Northern Ireland or to bring people before the courts of the United States for matters arising from the domestic problems of Northern Ireland.
Lord Avebury: I am grateful to the noble Lord for giving way. There is substantial literature on what constitutes the threshold below which Article 3 of the Geneva Convention does not apply. I felt confident in stating that in the case of Northern Ireland that threshold had not been reached. However, in East Timor 200,000 people are reported to have been killed or to have died as a result of the invasion by the Indonesians, and that constitutes a third of the population.
Lord Lamont of Lerwick: Of course the figure comes nowhere near that in East Timor. I did not suggest that it did. I merely suggested that if one looks at the population of Northern Ireland, a figure of one and a half million--some 3,000 dead--the number killed in relation to the population, and seen in relation to other countries to which the word "genocide" is applied, is not so different.
The noble Lords, Lord Avebury and Lord Goldsmith, referred to the different treatment of people who came here and who might be charged with torture as opposed to those who would not be able to be charged with murder. They have a point. However, the weakness of that argument is that so much of it--this was implicit in the remarks of the noble Lord, Lord Goldsmith--depends on the doctrine of command responsibility, which we shall debate shortly. It depends on one or all of the assumptions that the accused was "intimately involved in what happened", "had the knowledge", "could have prevented", or "did order". Such assumptions are extremely difficult to prove in a country thousands of miles away from where tragic events may have taken place. It seems to me that justice has to be related to a time and a place.
As the noble Lord, Lord Avebury, said, there have been some tragic examples of aid workers becoming caught up in--
Lord Goldsmith: I am grateful to the noble Lord for giving way. Is it his view that one cannot have confidence in a British court to determine the difficult but important questions to which he refers?
Lord Lamont of Lerwick: I am not sure that I would have entire confidence. For reasons that I shall not go into, I was very much shaken by some of the ways in which certain points were tackled in the most controversial case which was referred to in the noble and learned Lord's comments. I am sure that a British court would attempt to deal with the matter impartially; however, I do not see how a court can tackle the problem of knowing precisely what a government official, a head of state or a senior person in a foreign army knew, ordered or did not know.
It is one thing to argue that such matters should be dealt with by an international criminal court--and many people, including the noble and learned Lord, Lord Lloyd, drew the lesson from the Pinochet case. They said that it illustrated the need for an international criminal court rather than attempting to deal with these matters through national courts or through action, for example, in the Spanish courts.
Justice must be related to a time and a place. Notwithstanding some tragic incidents, as the noble Lord, Lord Avebury, said, involving aid workers, there are other examples of people going to countries and becoming involved in the politics of those countries. Tragic, wrong and atrocious things have happened to them. But at the end of the day the circumstances and the reasons why such events took place are best judged by the judiciary and the laws of that country.
Lord Goodhart: I am pleased to see my noble friend Lord Lester of Herne Hill in his place. My noble friend apologises for the fact that he was unable to be present earlier, and because he did not arrive for the start of this debate, he has not spoken in it. As was mentioned, he was detained on the affairs of the new Joint Committee on human rights.
I want to make clear the complete support on these Benches for this group of amendments. This country has had a long tradition of territoriality as regards criminal liability. For most offences we could not even prosecute British subjects who had committed crimes outside the UK unless part of the crime or conspiracy to commit it had taken place here. But there has been a gradual departure from that approach. Sometimes it has been departed from in the case of sex crimes against children; but more often--and this is the important feature--it has happened in relation to the gravest crimes against international law. The noble and learned Lord, Lord Archer of Sandwell, gave a list to which I do not want to add.
One Act which requires some comment is the War Crimes Act 1991. That Act was controversial. It was rejected by this House and was eventually passed
under the Parliament Act. There were arguments that the legislation was retrospective. I understood them at the time and I do not know which way I should have voted had I been a Member of this House. However, I do not believe that to be correct. The war crimes that were the subject of the Act were plainly criminal under general international law, as are the acts that this Bill seeks to attack. Perhaps more convincing were the arguments on the lapse of time, on the difficulty of obtaining evidence, and so on, in the case of offences that must, at the very latest, have been committed more than 45 years before the War Crimes Act was enacted. But that does not apply in any way to the present Bill. Plainly, in any sense, it is not retrospective legislation. Although there may be a time lapse, there may well not be. Certainly, it is very unlikely that there will be anything like the period covered by the 1991 Act.For the reasons that have already been very eloquently expressed, the absence of universal jurisdiction for the courts of the United Kingdom is a major gap in the Bill. The amendments that we are discussing in this debate will concern only very grave crimes--such as, genocide, which is possibly the gravest crime known to humankind, war crimes and crimes against humanity. Surely it is right that we should not apply a principle of territoriality to this, but if we find on our territory those who are alleged to have committed these terribly serious crimes and if, for one reason or another, there is no possibility of the ICC exercising its own jurisdiction, we should exercise our jurisdiction in this country whatever the location of such crimes and whatever the nationality of the person alleged to have committed them.
The only speaker in this debate who has spoken against the assumption of universal liability is the noble Lord, Lord Lamont. I have to say that I do not find his arguments remotely convincing. Reciprocality was one of them. I find no force in that argument. In the case of these exceptionally grave crimes, it seems to me that there is no reason why we should not claim responsibility for ourselves, quite irrespective of what may or may not happen in any other country.
The point about command responsibility was also made. Of course there will be cases in which it is difficult to prove this; but, equally, there will be cases in which it is clear. If it is impossible to prove to the standard required by the court, the accused will, quite properly, be acquitted. However, if it is proved, surely it is right that the accused should be convicted by a court in this country. I hope most profoundly that the Government will be able to accept the principle behind these amendments on this occasion, and that they will give universal jurisdiction to the courts of the United Kingdom in the case of these quite exceptionally grave crimes.
7.30 p.m.
Lord Monson: Before the noble Lord sits down, perhaps I may challenge him on one point. He said that the crimes about which we are talking are very grave. He mentioned genocide--of course, I agree with him in that respect--and war crimes. Some of the war
crimes listed in Article 7 are, indeed, very grave. I have in mind crimes against humanity and war crimes. However, others, such as the forced movement of population, which involve a great deal of hardship, are not always grave in the general sense.
Every partition that has taken place in the 20th century--there have been a great many of them--involved coercion and the forced movement of people. That was very regrettable for the individuals concerned, but it did not constitute a grave crime in the same category as genocide or anything of that nature. Does the noble Lord agree?
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