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Lord Williams of Mostyn: I am grateful to the noble Earl for giving me early notice of his amendment and indeed, for reiterating its purpose; namely, to ensure that claimants receive at least some money relatively quickly.

I understand that desire. On a number of occasions now I have assured the Committee that claims will be paid as quickly as possible. I understand entirely the basis on which this amendment is put forward. However, it may well make the process slower. There will not be any need for payments on account in respect of options A and B because they are determined figures. That would come into play only in relation to option C. My concern is that in talking about payments on account in relation to options A and B, there may be thought to be an opportunity for not making the full payment promptly.

I understand entirely the purpose of the amendment but I suggest that it is flawed. There is an ambiguity in that the amendment refers to,

It is not entirely clear whether that is the Secretary of State's estimate or the applicant's estimate. That is a very small matter which I merely point out to the noble Earl.

I agree entirely with the noble Earl about wanting prompt payment. A large number of persons are bound to make applications in the early weeks and I could not

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guarantee that everyone would be dealt with as soon as may reasonably be expected in that early period. But in relation to options A and B there should certainly be prompt payment because the figures are set. As regards option C, I should have thought that in the end, payment on account would slow down matters. I do not think that the analogy that the noble Earl put forward is entirely perfect although I recognise readily his expertise in compulsory purchase matters.

On the basis of what I have said, which is intended to be helpful, I hope that the noble Earl will withdraw the amendment.

The Earl of Lytton: It would be churlish to prolong matters any further than is necessary. I appreciate the support for the principle of the amendment from the noble Baroness, Lady Blatch. I confirm to the Minister that the word "his" refers to the Secretary of State. The Minister is right to say also that the amendment relates primarily to the option C process.

However, that is something that is triggered by the claimant, who notifies the Secretary of State and not the other way round. Therefore, it would be for the claimant to carry the risk of any potential delay. Of course, that would be based on his perception of how matters were going and how long drawn-out and difficult it would be.

I have to say that I am not wholly satisfied with the situation. I am concerned that the Minister twice repeated the comment that there would be many claims in the early days and that there is some thought that this may be a fairly long drawn-out process as regards the sheer volume of claims. That worries me quite a lot as to whether in fact the administrative resources, never mind the actual money for compensation, are really there. While reserving my position perhaps to return to the matter at a later stage in the Bill's proceedings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Remaining clause agreed to.

House resumed: Bill reported without amendment.

Royal Assent

The Deputy Speaker (Lord Ampthill): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

National Health Service (Private Finance) Act,

Southampton International Boat Show Act,

Imperial College Act.

Geneva Conventions (Amendment) Bill [H.L.]

7.51 p.m.

Lord Avebury: My Lords, I beg to move that this Bill be now read a second time.

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The arrest last week of the two Bosnian Serb war criminals who were allegedly responsible for the Omarska and Trnopolje concentration camps was a reassuring indication that S-FOR will ultimately apprehend all those indicted by the tribunal, despite the limitations of its mandate. I hope your Lordships will join me in congratulating and offering our warmest thanks to the commander of S-FOR and to the brave soldiers who carried out the operation. My only regret is that we did not conduct operations of this kind while I-FOR were still there, when we had many more troops to resist the opposition of the Serbs, who apparently support the war criminals in their midst.

Yesterday the Bosnian War Tribunal also handed down the first sentence on an indicted criminal for crimes against humanity. It is the first time that that has been done since the Nuremberg Tribunal. Thus the tribunal sent a message to all the others indicted that retribution awaits them in the end. But we are also reminded that crimes just as dreadful as those committed in Bosnia have been reported from other countries where there is no mechanism for bringing the offenders to justice. I have in mind, for example, Cambodia, Iraq, Liberia, Burma and Somalia. The Bill would enable us to prosecute the war criminals from those and other countries, if they come within our reach.

Your Lordships considered an identical Bill to the one before us during the last Parliament and the arguments for it are still the same. The Geneva Conventions Act 1957, which the Bill seeks to amend, already makes grave breaches of the conventions a felony, and "grave breach" is defined in the first Geneva Convention as being,

    "wilful killing, torture and inhuman treatment ... causing great suffering or serious injury to body or health".

But those provisions apply only in the case of international armed conflicts. Breaches of Common Article 3, which is concerned with the same conduct in internal armed conflicts, are not caught, though, as your Lordships will be aware, all the 30 or 40 conflicts now being waged across the world are internal, even if some of them have international dimensions.

Thus, when Iraq invaded Kuwait, if an Iraqi soldier wilfully killed a civilian Kuwaiti, he was committing a felony under the existing Geneva Conventions Act and could have been tried by an English court; but if that soldier had killed thousands of Kurdish civilians living on Iraqi territory--as was of course done in the infamous Anphal operation--he would not have been liable to prosecution in England or, indeed, in other states which have enacted similar laws. The Turks who kill civilians during their incursions into Northern Iraq are committing a felony, but, when they kill people in their own towns and villages, it is not an offence under our law. Yet, from the point of view of the victim, it makes no difference whether a soldier who murders or injures him belongs to a foreign army or the army of his own country.

Under the Geneva Conventions, the crime is prohibited in each case, but, where the offence is committed in non-international armed conflict, states are not obliged to criminalise it in their domestic legislation. They have the power to do so, because such crimes are

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offences of universal jurisdiction--that is to say, offences which can be dealt with outside the state where they were committed, or even the state of which the accused is a citizen, as the experts now agree. The International Criminal Tribunal on the former Yugoslavia so ruled in its judgment on the admissibility of the charges against Tadic, who has now been sentenced.

At the Geneva Review Conference on excessively injurious weapons last May, agreement was reached on a new protocol to prohibit the use against civilians in both international and internal armed conflicts of mines, booby traps and similar devices. That protocol is binding on both sides in an internal armed conflict, and the signatories are obliged to take legislative action and other measures to prevent and suppress violations of the protocol by persons under their jurisdiction or control. They must impose penal sanctions against persons who, contrary to the provisions of the protocol, wilfully kill or cause serious injury to civilians by the use of these devices. Thus it will be an offence under our law for a person who may or may not be a British citizen to lay mines in Angola, for example, wilfully causing death or serious injury to civilians there.

I asked officials in the Foreign Office how we intended to comply with that duty and was given the surprising answer that the situation is already covered by existing law. If the Minister could explain that when he comes to reply, it would be extremely helpful. My reading is that new legislation would be required, because the 1957 Act only covers the killing or injury of civilians in international armed conflicts and thus does not fully comply with the protocol. If that is so, I suggest that it would be incongruous to accept the principle that we should deal with Article 3 offences but then only cover those perpetrated with one group of weapons. We would make it an offence to kill civilians using anti-personnel mines but not to shoot them with a Kalashnikov or slice them up with a machete.

The draft statute of the International Criminal Court proposes that it will have jurisdiction over,

    "serious violations of the laws and customs applicable in armed conflict".

This means that the court will be able to try offences committed in either internal or international conflict. The interpretation is confirmed by Amnesty International in its paper of January 1997, The International Court: Making the Right Choices. However, just for the record, I would be grateful if the Minister would confirm that it is also the Government's understanding that the International Criminal Court will be able to try offences committed in either internal or international armed conflict.

If it is agreed that all breaches of the Geneva Conventions are crimes of universal jurisdiction, the next question is: before what court could they be brought? There could be further ad hoc tribunals like those already dealing with the former Yugoslavia or Rwanda. It has been proposed by Indict that a new war crimes tribunal should be established to deal with the horrendous crimes committed by Saddam Hussein and his gang, if and when they can be arrested. Such an approach would be expensive; it would risk an invidious

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competition between the victims of different internal armed conflicts about whose grievances should be given priority. It could also lead to variations in the treatment of similar offences between one conflict and another, and there are already differences between the statutes of the war crimes tribunals in Bosnia and Rwanda.

Secondly, we could wait for the International Criminal Court to get going some time in the 21st century, assuming that states can agree on the draft statute when they meet at the conference which is planned for 1998. By the time that it gets into operation there will be a huge backlog of crimes which the court would have power to try, and it will not be able to cope with more than a small fraction of them. The resources needed to collect and maintain evidence, to bring the witnesses and defendants to the court and to accommodate them during the proceedings will be a new burden on the United Nations at a time when member states are clamouring for economies.

The third possibility is that individual states themselves should assume at least part of the responsibility, as they will need to do anyway. That is what I am proposing in this Bill. In the draft code of crimes against the peace and security of mankind, published by the International Law Commission last July, implementation is based on the concurrent jurisdiction of national courts and the International Criminal Court for the crimes covered by the code. Article 8 states that,

    "each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in Articles 17, 18, 19 and 20--"

which include war crimes and crimes against humanity--

    "irrespective of where or by whom those crimes were committed".

The definition includes breaches of Common Article 3 as well as of Article 4 of Additional Protocol II, the language following that of the Rwanda tribunal's statute.

The commission, in its commentary on Article 20(f), which deals with serious violations of international humanitarian law committed in the course of a non-international armed conflict, said that it considered this provision to be of particular importance in view of the frequency of non-international armed conflicts in recent years. It points out that there are two other conventions which provide for the prosecution of offenders by an international criminal court, the genocide convention and the apartheid convention, and in both those cases there was provision for concurrent jurisdiction. In the case of these offences covered by the draft code, the commission states that the international community has recognised the continuing importance of the role to be played by national courts, and the report continues,

    "As a practical matter it would be virtually impossible for an international criminal court to single-handedly prosecute and punish the countless individuals who are responsible for crimes under international law not only because of the frequency with which such crimes have been committed in recent years, but also because these crimes are often committed as part of a general plan or policy which

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    involves the participation of a substantial number of individuals in systematic or massive criminal conduct in relation to a multiplicity of victims".

I have a number of questions for the Minister who is to reply. Do the Government support the code and its definition of war crimes? Do they also have a view on the alternative forms in which the code might be adopted, referred to in paragraph 47 of the commission's report? The choice lies between an international convention; the incorporation of the code in the statute of the International Criminal Court; and the adoption of the code as a declaration by the General Assembly.

The Belgian Parliament has already passed a law in June 1993 giving the Belgian courts the power to try war crimes committed in non-international armed conflicts regardless of the nationality of the perpetrator. According to a publication of the Belgian Foreign Ministry, Le Droit International Humanitaire, the extension of the application of the law of 1993 to non-international armed conflicts is a particularly remarkable expression of the determination to curb violations of humanitarian law where they are most frequently committed. This law was cited in the judgment on the admissibility of the Tadic case. The International Committee of the Red Cross strongly favours the enactment of criminal legislation to punish serious violations of international humanitarian law committed in non-international armed conflict.

When we last discussed this Bill, the noble Earl, Lord Courtown, who was then the Minister, said that we had had a thorough study of extra-territorial jurisdiction in 1996, and the then government had accepted the guidelines recommended by the Home Office Steering Committee, limiting any further extension of that jurisdiction. With respect, the study was not thorough. It contained a brief reference to crimes of universal jurisdiction in a two-page annex summarising the principles of jurisdiction under international law, mentioning piracy, hijacking, safety of civil aviation and counterfeiting, but ignoring torture, war crimes and crimes against humanity. There is no discussion of the existing Geneva Conventions Act in the Steering Committee Report, or of the Criminal Justice Act 1988, Section 134 of which makes it an offence to commit acts of torture wherever they may occur and regardless of the nationality of the perpetrator. If the committee had thought about the matter it would have concluded that in every case Britain had conscientiously enacted domestic legislation to allow us to prosecute offenders who commit crimes of universal jurisdiction, and now that Article 3 offences are clearly within that category, we ought to move against them without delay for the sake of consistency, as well as on the objective merits of doing so.

The biggest problems will always be to obtain enough evidence for a successful prosecution, and to arrest the alleged criminal. That has been the experience of the Bosnia and Rwanda tribunals, and it will be the same here. There may be few cases. One may observe that we have yet to prosecute a single torturer under the 1988 Act which I have just mentioned. However, at least 14 countries have enacted legislation authorising extra-territorial jurisdiction over torture, and in time it

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will become risky for known torturers to leave the sanctuary of their protecting state. In time there will be successful prosecutions and that will have a deterrent effect on torturers everywhere.

The same effect could be achieved with this legislation and similar enactments in other countries on war crimes. We know the identities of some of the killers in Northern Iraq, East Timor, Kashmir, Mexico, Chechnya, south Lebanon and south east Turkey. If we had the power to prosecute the military murderers from these territories, no doubt NGOs would put resources into the collection of evidence, as the Redress Trust now does in the case of torture. Sooner or later the net would close in on the war criminals too. The first conviction in the English or Scottish courts would be a landmark, showing that even if the human race is not civilised enough to abolish war altogether, those who kill, rape or otherwise seriously injure helpless civilians in any conflict, domestic or international, will be caught and punished.

Theodor Meron points out that once the tribunals on Rwanda and Bosnia have been wound up, a mechanism for trying persons arrested in the future will have to be devised. He suggests that one option is to prosecute them in the national courts. There is no statute of limitations for war crimes and crimes against humanity, but obviously neither the Bosnia nor the Rwanda tribunals will sit indefinitely. The statute of the International Criminal Court as drafted requires the consent of the state on whose territory an illegal act has occurred, and the state where the suspect is held in custody, to the prosecution. That is a recipe for paralysis rather than an effective complement to national jurisdictions. In the case of the convention against torture, there is an obligation on signatories to make the prohibited acts offences under their domestic law, whether committed on the territory of a party to the convention or otherwise. It is logical that we should follow the same approach with war crimes, and the more so because states on whose territory war crimes are likely to be committed, such as Turkey or Afghanistan, will not accept the jurisdiction of the International Criminal Court. It would be highly desirable to remove the limitations that are contained in Article 21. I should be grateful if the Minister would assure the House that we shall try to do so in the conference which is to be held next month to review the statute of the International Criminal Court.

The horrors of Afghanistan, Angola, Burma, Cambodia, Kurdistan and many other unseen or forgotten conflicts go on daily, and those who kill and maim civilians enjoy the protection of rogue states or warlords. At Nuremberg the world declared that sovereignty no longer gave leaders and their servants a licence to harm and murder their own citizens and others who came within their power. That principle has been extended by the convention against torture, the establishment of the two ad hoc tribunals, and the development of the International Criminal Court together with the ILC code. It is now time to begin extending the scope of national legislation against war

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crimes, as many states have already done against torture. Under this new Government with their firm commitment to human rights Britain can lead the way.

Moved, That the Bill be now read a second time.--(Lord Avebury.)

8.10 p.m.

Baroness Blatch: My Lords, I congratulate the noble Lord, Lord Avebury, on his persistence and indeed his sense of opportunism. The Bill which is now before the House was in fact, as has been said, the same Bill that was before the House in January this year. At that time the then government, while accepting the gravity of the many examples of atrocities from around the world, nevertheless, for reasons on which I shall touch today, were unable to lend support to the Bill. However, the noble and learned Lord, Lord Archer of Sandwell, who spoke for the then Opposition, appealed to me as the Minister responsible to adopt or support the Bill and if, due to the difficulty of timing in the last parliamentary Session, the government were unable to support the Bill proposed by the noble Lord, Lord Avebury, I was invited by the noble and learned Lord, Lord Archer of Sandwell, to make an open declaration on the part of the United Kingdom Government to future legislation.

Therefore it would appear that the noble Lord, Lord Avebury, will strike lucky today and will receive the support he seeks from the Government to which he and his colleagues on the Liberal Democrat Benches in this House are so wedded. As regards resources, the noble and learned Lord, Lord Archer of Sandwell, speaking for the Labour Benches in the course of the previous Second Reading of the Geneva Conventions (Amendment) Bill, said at col. 1318 of the Official Report of 30th January:

    "We have sometimes heard the argument that it would provide an extra burden on our courts so that there are resource implications. In this case, I cannot believe that the jurisdiction will be invoked so frequently that that will be a consideration".

This issue cannot be argued both ways. On the one hand the examples cited today by the noble Lord, Lord Avebury, and in the previous Second Reading debate by the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Lester of Herne Hill, all illustrated the proliferation of such actions around the world which would have a material impact on our courts, law practitioners, investigators and, as night follows day, resources. Therefore whatever the reaction of Government today--and if the Government are to be consistent with their attitude to the Bill prior to 1st May, support for the Bill will follow--the issue of resources cannot be dismissed as "not a matter for consideration".

Issues raised in this debate are serious. I have no wish to detract from that. The United Kingdom has a fine reputation for taking its responsibilities under all international conventions seriously. We are enthusiastic supporters of the Geneva Conventions which were enacted as long ago as 1957. The particular issue under discussion today is to insert a new section, making it an offence to commit, aid, abet or procure any act in breach of Common Article 3 outside the United Kingdom. That, of course, constitutes a substantial extension of

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extra-territorial jurisdiction which would allow our courts to deal with offences committed in the course of armed conflict anywhere in the world with which Britain is not involved.

It is of course true that there have been extensions of extra-territorial jurisdiction, for example, covering drug trafficking overseas, crimes committed on board aircraft and, an issue widely supported in this House, the incitement of certain sexual offences involving children. However, the review of extra-territorial jurisdiction, which was carried out last year and which was deposited in the Library of the House, recommended that the basis of the jurisdiction of our courts should remain territorial; and we, the previous government, accepted that recommendation.

The conclusions of the review were not entirely inflexible. It recommended also that there could be exceptions, as indeed there have been, but that they should be the exception rather than the rule; and in order to help, guidelines were set out to assist with the evaluation of new proposals. Those can be found in paragraphs 2.18 to 2.24 of the review report.

Having accepted the recommendation of the review, we on these Benches have not closed our minds therefore to the courts taking account of the actions which have repercussions abroad. But, as the review recommends, such actions should remain an exception to the general rules and be fully justified in each and every case. We do not believe that as regards actions involving the internal affairs of other states, to which Common Article 3 clearly refers, it would be right to take unilateral jurisdiction.

The General Assembly of the United Nations has declared its concern for the kind of atrocious acts which have been the subject of this debate. The General Assembly renewed the mandate for the Preparatory Committee and passed a resolution calling for the establishment of an international court. I understand that a conference to make progress on producing a statute to give effect to such a court is to be held in 1998.

When I left the Home Office, government officials were participating in those negotiations. So, too, were many non-governmental organisations which we welcomed. It would be helpful to know from the Minister if those negotiations are continuing.

I believe that that is the most effective way to proceed, and therefore I argue that the unilateral approach to extra-territorial jurisdiction set out in the Bill should not be supported.

8.15 p.m.

Lord Williams of Mostyn: My Lords, the issue which the noble Lord identifies with his Bill is one that concerns us all. I am grateful for the way in which he spoke on his Bill. I have to say that the Government cannot support this measure, not because we do not want to see people brought to justice who perpetrate this kind of evil but because we do not think that the Bill provides an effective, appropriate means of achieving that aim.

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The four Geneva Conventions require that state parties make grave breaches criminal offences whenever they occur. Common Article 3, which protects non-participants in internal conflicts from violence towards life and person, contains no provisions for grave breaches and therefore there is no requirement for any state party to the conventions to take jurisdiction over a breach of these common articles. That is not to say, as has rightly been pointed out by the noble Lord, Lord Avebury, that we are precluded from taking jurisdiction, and some states have done so.

However, it is the truth that the criminal law of this country is for the most part territorially based. The link between jurisdiction and territory is of long standing. As has been said, it is important that our traditions of evidence and procedure reflect our historical and cultural background. We have a strong emphasis on oral testimony and cross-examination of witnesses, so that a defendant may see his accuser--and see his accuser, whether witness or complainant, cross-examined. Other states, I recognise, take a wider jurisdiction over their nationals and have different rules of evidence which are perhaps suited to different circumstances, allowing hearsay evidence and written depositions to the court. It would be difficult indeed to have such a major change about the approach to evidence. It is difficult, therefore, for the courts of this country to take effective jurisdiction over acts committed outside our territory. We do so in certain circumstances: genocide, state torture and recently for sexual abuse of children. For war crimes we do so where it is a requirement of the provisions of the Geneva Conventions Act 1957.

I am not satisfied that it would be right for us unilaterally to take jurisdiction over breaches of Common Article 3 of the Geneva Conventions. First, any state should think carefully before interfering in the internal affairs of another. The Bill provides that its provisions take effect only where there is a state of armed conflict, but it leaves the decision, which may be difficult if not impossible, to the Secretary of State or to the Director of Public Prosecutions about whether a prosecution should be launched. The Secretary of State has to adjudicate as to whether an armed conflict was taking place; and the Director of Public Prosecutions has then to decide whether a prosecution should take place. Does it apply equally to all parties--to those we might wish to support because they are, we would say rightly, rebelling against a tyrannical regime; or only those of whom we disapprove? We have no guidance in the Bill.

There is also a concern that we might leave ourselves open to tit-for-tat action by other regimes which might argue, for instance, that the situation in Northern Ireland is covered by Common Article 3 and seek to prosecute British Army personnel in respect of their action there. I cannot think that your Lordships' House would view that with equanimity.

The real way forward is through international co-operation. I confirm to the noble Baroness that negotiations are constantly continuing among our colleagues abroad. Special arrangements can be and have been made about war crimes in internal conflict, as the noble Lord pointed out, in former Yugoslavia and Rwanda. There are continuing discussions in the United

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Nations about the formation of an international criminal court. One of the matters being discussed is giving the proposed court the power to deal with breaches of Common Article 3. We believe that the best approach to these issues is to deal with them on the basis of international consensus.

Therefore, as I said at the outset, the Government are not able to support the Bill. There are difficulties of principle. But I do not believe that the Bill can be amended to the satisfaction of the Government. As normal, the Government will not seek to prevent the Bill receiving a Second Reading today.

Perhaps I may deal with three specific matters put to me by the noble Lord. The first is the question of our approach to the international criminal court. I am happy to say that I underline our strong manifesto commitment to the establishment of an international criminal court. We are discussing matters with those who have interests. The question of Common Article 3 is among those aspects of common interest. I approach the matter with an entirely open mind.

We have to remember that Common Article 3 is concerned with internal armed conflicts and the primary duty is on the state within which the conduct has taken place to take effective action as a matter of its national law against individual perpetrators.

The noble Lord asked me specifically about Article 21. We are examining Article 21 in the course of preparations for the next meeting of the preparatory committee on the international criminal court. We have not yet taken a final view.

The noble Lord asked specifically about land-mines and advice that he had been given as to whether or not acts were presently unlawful in this country. He also asked specifically about the land-mines protocol. We intend to ratify the land-mines protocol. It will not require primary legislation because the acts covered are already offences in this country. The existing legislation--for instance, the offence of murder under the common law or the provisions of the Offences Against the Person Act 1861--applies to acts committed under the jurisdiction of the United Kingdom and therefore no new legislation is necessary. However, I suggest that it needs to be borne in mind that the protocol requires a state only to criminalise violations of the protocol by persons or on territory under the state's jurisdiction or control. That is a much narrower jurisdiction than is envisaged in the noble Lord's Bill, which would extend to acts in breach of Article 3 committed by any person anywhere outside the United Kingdom, whatever his or her nationality.

I think I have dealt with the specific three questions that the noble Lord put to me. I am sorry if he feels disappointed at our response. It is my hope that he ought not to be, because the Government have no doubt at all that the real way forward is the ICC--which would not only be effective but would demonstrate the feeling of the international community that these grave crimes ought not to go unpunished.

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