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175: After Clause 51, insert the following new Clause-

"Retrospective operation

In Part 5 of the International Criminal Court Act 2001 (c. 17) (offences under domestic law), after section 69 insert-

"69A Retrospective operation of this Part (1) The provisons of this Part shall be treated as having had effect-

(a) in respect of genocide, since 9 December 1948 (being the date when the Genocide Convention was approved by the General Assembly of the United Nations),



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(b) in respect of crimes against humanity, since 1 January 1991 (being the date from which the United Nations, through the adoption of the Statute, recognised crimes against humanity as being part of customary international law),

(c) in respect of war crimes-

(i) which fall within article 8.2(a), since 12 August 1949 (being the date the Geneva Conventions were done),

(ii) other than those referred to in sub-paragraph (i), since the date when they were criminal according to the general principles of law recognised by civilised nations.

(2) If the date referred to in subsection (1)(c)(ii) is earlier than 6 June 1945, that date shall be treated as 6 June 1945 (being the date in respect of which jurisdiction under the War Crimes Act 1991 ended).

(3) War crimes referred to in subsection (1)(c)(ii) are deemed criminal according to the general principles of law recognised by civilised nations from 17 July 1998 (being the date the ICC Statute was done) and may be so before that date.

(4) In this section-

"the Geneva Conventions" means the international conventions done at Geneva on 12 August 1949,

"the Genocide Convention" means the Convention on the Prevention and Punishment of the Crime of Genocide approved by the General Assembly of the United Nations on 9 December 1948,

"the Statute" means the Statute of International Tribunal adopted by the Security Council of the United Nations, and

"the International Tribunal" means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 established by Resolution 827(1993) of the Security Council of the United Nations.""

Baroness D'Souza: As I have spelt our previously in this House, the amendment seeks to adjust a procedural aspect of current legislation-namely, to extend the retrospective and extraterritorial application of the International Criminal Court Act. In brief, the International Criminal Court Act 2001 enables there to be prosecution in the UK courts of those suspected of perpetrating crimes against humanity, war crimes and genocide, irrespective of where those crimes were committed. However, the criteria insist that the suspect be a UK national or resident in the UK and that the crime was committed after 2001 when the ICC came into force in the UK. The result of this anomaly is that there are at present perhaps up to a 100 people suspected of such serious crimes currently in the UK. Recently four Rwandan suspects deemed to have committed crimes prior to 2001 were released.

It cannot be good practice that justice is neither done nor seen to be done, or that the UK might possibly be regarded as a safe haven for perpetrators of war crimes and genocide. Ultimately these suspects must be forced to account for their crimes if the universal will to eradicate crimes against humanity is to be achieved.

The amendments address the timing, presence, immigration, extradition and internal conflict aspects of the ICC, among others, thereby enabling the UK courts to have jurisdiction with respect to crimes committed after 2001. To avoid the retrospective

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application of the law, the courts could only have this jurisdiction if the crimes were committed at a date at which these crimes infringed UK law. This has already been demonstrated in citing existing legislation dealing with war crimes, crimes against humanity and genocide by virtue of the Geneva Conventions Act 1957, the Genocide Act 1969 and the statute of the International Criminal Tribunal for the former Yugoslavia, which pronounced crimes against humanity as criminal under customary international law.

It has been argued that the UK law should be brought into line with other common law countries, including Australia, New Zealand, Canada, South Africa and, very recently, the USA. We are, therefore, extremely grateful to the Government for their successful efforts to do just this. We learnt today that the Government have accepted that crimes in the categories of genocide, war crimes and crimes against humanity committed since 1991 will henceforth come within the jurisdiction of the UK courts, based on the precedence established by the International Criminal Tribunal for the former Yugoslavia. Furthermore, the Government are exploring the possibility of providing more certainty as to who may be considered to be a UK resident. However, this continues to trouble those of us who have signed up to these amendments, and those research organisations which have provided the background. It is surely not right that suspects of such serious crimes can avoid charges and possible prosecution by virtue of a refusal to take up any form of residence. As things stand, that can and does happen. A casual visitor to the UK, whether for holiday or perhaps medical treatment, must come within the arm of the law if they are a suspected genocidaire or perpetrator of other serious crimes. We therefore press the Government to come up with a more inclusive definition of residence to address that remaining anomaly, so that we can consider the matter on Report.

Once again, I express my thanks to the Government for having come so far in meeting our concerns. I beg to move.

Lord Carlile of Berriew: I shall speak briefly in support of the amendment. I agree with every word said by the noble Baroness. I add what a pleasure it is to be on the same side as the noble and learned Lord, Lord Falconer of Thoroton, immediately after the last debate; it shows what a civilised place we are.

I too had the opportunity to read the Written Ministerial Statement issued this afternoon by the Lord Chancellor and Secretary of State for Justice. I want to say how grateful I and all of us involved in the campaign have been for the assistance that we have had from Ministers and the conversations that have taken place. I appreciate the way in which the Government have listened and moved on the subject. I too applaud the decision that the categories of crime of genocide, war crimes and crimes against humanity should be included as from 1 January 1991.

My only reservation, like the noble Baroness, is the Government's apparent remaining indecision about the difference between presence and residence. I understand completely that the Government are still considering the matter, so I do not propose even to

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imply that they are resisting some significant change in the definition of persons who can fall within the expanded jurisdiction. I respectfully remind the Minister that a presence test exists in Canada, New Zealand, South Africa, France, Germany, Spain, Belgium and the United States for genocide. Indeed, if Senator Durbin's Bill in the United States Congress is passed, as seems likely, there will be a presence test for crimes against humanity. Canada has a presence test across the board, and it has not caused particular difficulties there.

My concern is that people who commit the most horrendous crimes against humanity, and have in some cases been guilty of the murder of hundreds of thousands of people, should have absolutely no hiding place. We would not be closing the loophole effectively if they were allowed to go shopping in Knightsbridge for a couple of days but were not liable to be arrested and tried here. It would continue the poor reputation that the United Kingdom has had as a safe haven were there to be loopholes of that kind.

Therefore, I simply urge the Minister in a spirit of co-operation that, when the matter comes back, a test should be found which perhaps excludes those whose plane perforce, by act of God or some other temporary reason, puts down at Heathrow Airport to be refuelled or repaired, but includes those who have chosen to remain here for a period of time.

Lord Falconer of Thoroton: I join the noble Baroness, Lady D'Souza, and the noble Lord, Lord Carlile, in very much welcoming the approach of the Government in relation to this matter. I particularly welcome the backdating to 1991 in respect of all three categories of crime. I read the letter that I have received from Claire Ward, the Justice Minister, as indicating that there will also be a shift in relation to the current residence test. I am not sure precisely as to what the shift is going to be. It would be the greatest disappointment-and I do not expect to be disappointed-if the shift that occurred on the three crimes, by backdating them to 1991, was not also reflected in a shift in relation to what the test is. Indeed, it should move as close to presence as possible, while accepting that the true transitory person may not be liable to be caught. I should be very interested to hear what the Minister has to say in relation to this issue, and I very much hope that he will be able to give us more encouragement than we have already had.

9.30 pm

Lord Alton of Liverpool: As the fourth signatory to this amendment, I join the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Carlile, in supporting my noble friend Lady D'Souza, who tabled the amendment and who spoke on the subject very eloquently at Second Reading.

At Second Reading, I described what I had seen when I visited Murambi in Rwanda, where 56,000 people had been killed during the genocide there. I described to the House how some people who were alleged to have been responsible for those crimes were still living in this country, and how we were unable to extradite them to Rwanda because we had no certainty

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that they would receive a fair trial there, but, on the other hand, we had no way of bringing them to justice here.

The noble Lord, Lord Bach, the Minister, listened very carefully during that Second Reading debate, and I was very struck by the reply that he then gave us. I felt then that the Government were taking the issue seriously and would do something about it. I was delighted at the meeting that he organised with the Secretary of State for Justice and Lord Chancellor-the right honourable Jack Straw-to hear the commitment that Mr Straw also gave to seeing that a change was made in the law. This is a very good example of where the Government have listened carefully to representations made, not just within your Lordships' House but to groups such as the Aegis Trust.

I am delighted that this amendment is before us tonight and to have seen the Statement that has been issued. In view of the lateness of the hour and all the arguments that have been advanced, all that needs to be said is that we should wish the amendment well, hope that it will reach the statute book soon, and that we will see brought to justice some of those who have been responsible for crimes in all three categories. There was some speculation that they may be reduced merely to cover genocide-I know that Sir Ken Macdonald, the former Director of Public Prosecutions, raised that concern. Again, I am delighted that, whether it is crimes against humanity, genocide or war crimes, all three categories will be caught by this amendment.

Lord Hannay of Chiswick: I rise briefly in support of the amendment of my noble friend and other noble Lords. I declare an interest as the chair of the United Nations Association, on whose behalf I made representations to the Secretary of State for Justice and Lord Chancellor, asking that this loophole be filled. I have just three short points to make.

The first is the general point that since 1991 this country has been committed to trying to remove the culture of impunity for these appalling crimes world wide. We have willed the end but, alas, as we discovered in the High Court a couple of months ago, we failed to will the means in an effective way, because we have left a loophole. I am sure that we did so totally inadvertently, but through that loophole have gone a number of people.

My second point is that it is well known and well advertised that that loophole exists. If it is not closed absolutely firmly and fully, we will have more and more of this. It will be known that, whereas in some countries people like this will be proceeded against in the courts immediately, under certain circumstances in this country they will not. The arguments for closing the loophole are not just moral or legal, but are practical arguments about this country not becoming a haven for these people.

I should also add as my third point the arguments that others have advanced for moving to a presence criterion in this matter. If there have to be some exceptions from the presence criterion, so be it-I am sure that if they are tightly drawn and carefully drafted, that would be fine. I have real doubts about whether

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continuing on the basis of residence will be a happy way forward. My greatest fear is that an enlarged residence criterion, however carefully it is drafted, would still leave loopholes that might result in further High Court cases, and therefore we would end up in the same situation that we are in now. That would be lamentable.

I thank the Government warmly for the shift in their position that was made clear today, and for the way in which the Minister, his colleague in the other place and others who have been involved have listened to the representations that have been made. I hope that, in their further considerations before Report, they will be able to draft something that is really watertight and based on presence.

Lord Elystan-Morgan: I, too, warmly welcome the amendment and congratulate the Government on graciously accepting it. Let me say, on a personal note, that I was a Minister at the Home Office in February 1969 and had the privilege of taking the Genocide Bill through the House of Commons. I am not entirely sure whether the fault began with that measure or whether it lies more with those who were legislating in 1991-or whether it is shared. I plead guilty to whatever faults there were in 1969, but in mitigation I will say that the Bill began in this House and came to the House of Commons without any particular comment on the aspect that we are dealing with now. I well remember powerful speeches made on that occasion by the noble Lord, Lord Waddington, and the noble and learned Lord, Lord Archer. I will also say that the test should be deliberate presence in the United Kingdom. If the presence is accidental, it may well be that an exemption could be made. I am sure that "residence" would allow many guilty people to escape.

Lord Kingsland: I, too, thank and congratulate the Government for the statement made this afternoon, and the signatories of the amendment for provoking it. The date of 1 January 1991 is eminently sensible and defensible, for all the reasons that the noble Lord, Lord Hannay, gave to your Lordships.

I suspect that, when the Minister sits down, the outstanding issue will be the grey area between "residence" and "presence". That is, indeed, the one part of the amendment that needs enriching. The Opposition have not yet concluded where our position will lie in the spectrum between presence and residence. We would be extremely grateful tonight, as other noble Lords have said, for any help that the Minister can give us. It may be that the Government's thinking has not yet crystallised-but to the extent that it has, it would help us when we come to later stages of the Bill.

Lord Thomas of Gresford: We on these Benches, too, are very pleased that the Government have moved. I thank the Minister and the Parliamentary Under-Secretary of State for the discussions, which I hope have been fruitful.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): The amendments before us seek to address a very real problem. We have constantly

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said, and remain of the view, that serious international crimes of this nature are best dealt with in the country where the crimes took place. That is where the witnesses and the evidence are more easily accessible and where the victims and survivors of the crimes can see justice done and reparation made. Failing that, they should be dealt with by international courts or tribunals, where they exist. That is why we have given financial and practical support to the International Criminal Court and to the various international tribunals such as those for the former Yugoslavia and for Rwanda. However, we know that it is not always possible for crimes to be dealt with in that way.

My right honourable friend the Justice Secretary said on 5 May that he had met representatives from the Genocide Prevention All-Party Parliamentary Group and that they had made a strong case for extending the jurisdiction for the offence of genocide within our law. He undertook then to consider how best to proceed. Since then, we have of course had Second Reading of this Bill, when a number of noble Lords, who have spoken again this evening, spoke eloquently and persuasively about this issue. We have given the matter more consideration and I am delighted to say-I thank all noble Lords for what they have said-that my right honourable friend the Justice Secretary announced this morning that we have concluded that our domestic law in this area should indeed be strengthened.

That is good news, but this is a complex area of the criminal law. Let me deal first with the question of retrospection. The offences of genocide, war crimes and crimes against humanity are contained in the International Criminal Court Act 2001. From that year, we have had jurisdiction to try those crimes in the UK wherever they took place. Parliament took the view in 2001 that the extraterritorial effect of the offences should not be retrospective for a number of reasons. It wanted the UK law to be complementary to the jurisdiction of the International Criminal Court, which is not itself retrospective. It is not normally legally permissible to make criminal law retrospective. However, it is possible to make criminal in domestic law behaviour that at the time was recognised under international law as criminal. The Committee will not need to be reminded that that is set out in Article 7 of the ECHR. However, there are difficult issues over what date each of these areas of offending, or their constituent elements, was recognised by the international community. This is particularly difficult for war crimes and crimes against humanity.

Having considered the matter with some care, we decided that, as far as is permissible under the legal principles applicable to retrospection, we should seek to cover the crimes of genocide, war crimes and crimes against humanity from 1 January 1991. This is a significant and symbolic date in terms of criminal prosecution for offences of this kind as it is the date from which the International Criminal Tribunal for the former Yugoslavia, whose statute specifically covered these three types of crime, had jurisdiction to try offenders under the tribunal's statute as adopted by the United Nations Security Council. The date 1991

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will also allow us to adopt a single common date for all three areas, inasmuch as we can cover them and thus provide for clarity in the law.

The other issue that these amendments address is who should be covered by the offences. The law at present covers offences committed by UK nationals, UK residents and crucially those who subsequently become resident, as well as those subject to UK service jurisdiction. During the passage of the International Criminal Court Bill, we listened to concerns about jurisdiction and agreed that, unusually and because of the grave nature of these crimes, jurisdiction for these crimes should extend to UK residents as well as nationals. The 2001 Act, as I have mentioned, also allows prosecution of those who commit crimes and subsequently become resident.

We are not persuaded that extending the law to those simply "present" here would be right. Short-term visitors here are not seeking a safe haven in the UK and they should ideally be prosecuted in the country where they are resident. To cover them would be a significant increase in our jurisdiction over people with no connection to the UK, except for temporary presence. The reason for taking the exceptional step of strengthening our law to deal with actions in the past is that we want to prevent the people for whom we are responsible, whether through nationality or because they live here, from escaping justice. Our aim is not to become a policeman for the world. As a general rule, if such individuals arrive here and are known to be suspected of an offence of such a serious nature, they may well be turned back at the port of entry.

The current law covers those who are resident in the UK. This is a matter of fact for the courts to determine on the facts of individual cases but we are conscious of concerns that the residence requirement may lack clarity. Of course, what has been said by all the speakers in this short debate has centred-if I may put it this way-on the lack of clarity as to what the expression "residence" might mean in this particular case. Therefore, we will explore the possibility of providing more certainty as to who may or may not be considered to be a UK resident for these purposes.

We accept that the status quo is not a viable option. Our proposals to make it possible to prosecute in this country persons resident here for offences committed since 1 January 1991, so far as is permissible under the legal principles applicable to retrospection, will send a clear signal that this country must not become a safe haven for those suspected of committing these awful crimes.

I invite the noble Baroness, Lady D'Souza, to agree to withdraw her amendment for the time being. I assure her that we will bring forward on Report, which will now be after the Recess, appropriate government amendments along the lines I have described. All noble Lords have been extremely gracious in the compliments they paid to the Government this evening. In turn, perhaps I may say how helpful all those who have met us and argued for this have been towards persuading us that it was necessary for the Government to take the line that they have. I hope that the noble Baroness, having agreed that the proposals will go a significant way towards meeting the objectives set out

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in her amendments, will keep talking to us during the course of the next few weeks and months. If the noble Baroness and the other sponsors of her amendments would find it helpful to discuss the detail of our proposed amendments, we of course would be more than happy to meet her and the others in advance of our amendments being tabled and to share the amendments with them before they are laid before the House.


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