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Lord Goodhart: No, I do not. It seems to me that the forced transfer of population, as was practised by Stalin when he removed many populations from one part of the former Soviet Union to an entirely different area, is very rightly described as "a crime against humanity" and, indeed, is a very serious crime.
Lord Goodhart: I believe that that was an historical tragedy. It was something that should never have happened. I am afraid that there are many cases where people move voluntarily for fear of what might happen if they stayed behind. The forced and compulsory transfer of populations is, and should remain, a crime against humanity.
The Earl of Onslow: Will the noble Lord comment on Israel, which has such a deliciously decent reputation vis-a-vis the Palestinians, whom they have herded into ghettos, the Gaza Strip, the Lebanon, and all the other places? Alternatively, what about the Malaysian emergency, where we had to do it for the general good? I accept that we must be very careful in this respect. However, I do not believe that this subject is particularly germane to the amendments now before us. If we are to move into population exchanges, we must keep the record straight. It is not quite so simple. Venizelos is one such situation, and the beautiful record of Israel is another.
Lord Goodhart: I shall start with the question of Israel. Speaking as someone who is of Jewish descent on my father's side, I deplore many of the activities in which various Israeli governments have indulged over the 53 years, or so, since the creation of the state of Israel. Israel contains many people--
Lord Archer of Sandwell: I am grateful to the noble Lord for giving way. This could give rise to a most interesting debate and, indeed, has done so on other occasions. However, does the noble Lord agree that we are considering the Bill, and that we cannot change the statute?
Baroness Scotland of Asthal: This debate has been raging for quite some time. Her Majesty's Government have given a great deal of thought and consideration to the issue. It has come as no surprise to us that a number of noble Lords have pursued the issue with such commendable vigour. The question of whether we should take universal jurisdiction in this Bill has been a matter of acute debate ever since we published the draft in August of last year. Should we use this Bill to provide for United Kingdom courts to take jurisdiction over ICC crimes, wherever in the world they were committed and whoever committed them?
Members of the Committee will know that we have taken the view that it would be inappropriate for the UK to adopt the role of global prosecutor. The way that the ICC is intended to work is for states of the nationality of the accused, or on whose territory the crime was committed, to take jurisdiction and, failing that, the ICC. We continue to believe that the best place for an effective prosecution is the state of the accused where investigation and prosecution are likely to be most practical.
However, I have listened most carefully to the points made by a number of noble Lords on all sides of the Chamber. I am very grateful to them for their thoughtful contributions. The proposals behind these amendments are commendably ambitious. It is not a practical proposition to bring cases in the United Kingdom courts where the crime and the criminal have no link to this country: the evidence is inaccessible, witnesses are hard to come by and successful prosecutions are almost impossible.
We must also bear in mind why we are creating the ICC. As I said, it will operate with complementary jurisdiction. UK courts will be able to bring cases against UK nationals and crimes committed on UK territory. That principle should also apply elsewhere. It is the primary responsibility of the state of nationality of the accused, or where the crime took place, to bring the crime to trial. If they are unable or unwilling to do so, we are creating an ICC to step in. That is the whole purpose of the court. It is important that we do not over-extend ourselves to the point where we could be accused of undermining the very court we seek to promote.
That said, I have listened with particular care to the examples given by the noble Lord, Lord Avebury, and to the hypothetical situations put forward by my noble and learned friend Lord Archer and by my noble friend Lord Goldsmith whereby a crime could be committed by a UK national and his non-British friend. They could commit a crime overseas together and return to the UK. The UK national could offer to provide a home for his friend. UK courts would not have jurisdiction over that friend because he was not a UK national. He may not be of sufficiently high rank to interest the ICC. His host country may not be one to which he can be extradited. Those issues have given
The possibility of that situation arising seems to us to be slight. However, the Government recognise the concern that is expressed. That being the case, and having considered all the arguments put forward during the debate, the Government are minded to bring forward amendments on this issue at Report stage.
The amendments the Government intend to bring forward will not convey universal jurisdiction on UK courts but will give UK courts jurisdiction over UK residents. This builds on the precedent of the 1991 War Crimes Act. The Government's intention is to provide that any individual who chooses to make the UK his home from now on will be liable before UK courts for his actions overseas, which were crimes under this Bill, before he arrived here.
Lord Avebury: When the Minister says UK residents, does she mean persons who are ordinarily resident in the UK or does that extend to people who come here in some other capacity as, for example, a visitor or a student, or the case that I mentioned, Colonel Yunus Yosfiah, who came here as a guest of the Ministry of Defence?
Lord Lester of Herne Hill: Before the noble Baroness answers that, I hope that I may put the same kind of question in a slightly different way. Do I understand that the effect of the amendment would be similar to the situation in Canada, as I understand their statute, though less far-reaching than the situation in New Zealand? As I understand the situation in Canada, there is jurisdiction where after the time the offence is alleged to have been committed the person is present in Canada. Is it based upon that notion of presence?
Baroness Scotland of Asthal: The definition of residence is a difficult and complex one. A number of Members of the Committee will know that it is interpreted in different ways in different statutes. One cannot say with any certainty, for example, that every person who has come to the UK and stayed for two or three years is definitely a resident here. On the other hand, someone who has been here for a matter of days but has displayed every sign of residing here on a more permanent basis may be considered a resident. It is right that the decision on whether someone is resident here should be made by a competent court with the benefit of all the evidence in a particular case. The concept of residence in the UK also appears in the War Crimes Act. No definition is provided for that and it does not appear to have affected the operation of that Act.
I deal with the point raised by the noble Lord, Lord Lester. We do not have the precise definition that is being used by the Canadians. It looks as if they take the view that if someone is present within their jurisdiction that suffices. I cannot say at this stage whether we shall
Lord Clinton-Davis: The argument as to whether someone is resident is a difficult one. Would it not be much easier for the noble Baroness to explain to the Committee that anyone who is here permanently or on a temporary basis should be subject to the will of the court? I hope that she will answer in the affirmative.
Baroness Scotland of Asthal: As I said, this is a complex situation. The Committee may remember the case of Levene, the Inland Revenue case, in which a few days were considered to be appropriate. In other cases that is not so. The term "residence" appears to give us the kind of flexibility--
The Earl of Onslow: The noble Baroness seems to be making the position much more complicated than it need be. If a person has to argue as to whether or not he is a resident and quotes several different statutes with different descriptions of resident, that seems to me an unnecessarily complicated way to do things. As the noble Baroness knows, I have major doubts about the whole concept of the Bill but at least there is a logicality to what Members of the Committee opposite say. However, the moment you introduce the concept of whether someone is or is not a resident, it does not seem to me that you bring any clarity to the matter. We must have clarity in the criminal law.
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