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Baroness Williams of Crosby moved Amendment No. 105:
"( ) Permission under subsection (2) shall not be given if—
(a) there are reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights, and
(b) the person against whom proceedings are contemplated is not alleged on reasonable grounds to have aided, committed, or encouraged, or to have been a member of an organisation which has aided, committed or encouraged acts involving the deliberate killing of members of the public."
The noble Baroness said: This amendment addresses an issue that has come up repeatedly in our discussions on the Bill. Members of the Committee will
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recall that in our discussions, one of the most difficult problems we have had to deal with is that while in some countries a person would be called a terrorist, in other countries he would be referred to as a freedom fighter; in other words, what are the clear limitations on the use of force against a government and on what grounds might such force be justified?
Let me begin by saying briefly that this amendment addresses the issue of the circumstances under which the Director of Public Prosecutions could bring a case against a foreign power where an offence has been committed which is partly or wholly of concern to that power. Perhaps I may make a very clear distinction between those governments who have legitimate channels to express opposition, such as our own and those of most democracies in the world, and those governments who do not. We should be very careful indeed of being recruited into what is sometimes described as a "war against terrorism" which fails to make that crucial distinction.
I remind noble Lords of the great example we have often discussed in this House, which of course is that of apartheid South Africa. I refer to the famous remark made by Nelson Mandela from the dock at the Rivonia trial in 1964:
"All lawful modes of expressing opposition to this principle, the principle of white supremacy, had been closed by legislation and we were placed in a position in which we had to either accept a permanent state of inferiority or to defy the government".
That is often treated as the classic case where sabotage against property as distinct from terrorism against innocent individuals could very powerfully be justified.
But there are other examples nearer home—for example, the overthrow of the democratically elected government of Greece in 1973 by what we now know as the Greek colonels. Their initial two actions were, first, to ban all political activity; and, secondly, to announce that anyone who held any official position and came from a party opposed to the government would lose that position and be suspended from office. It was a sweeping ban on democracy. The question arising from that was about the methods that the Greek opposition could use to undermine a military regime that had been established in a coup and had overthrown the democratically elected government of Greece.
Those might be described as relatively mild forms of oppression. There are yet more serious methods of oppression involving what have now become clearly defined as crimes against humanity, ethnic cleansing, genocide and other barbaric activities that sometimes deface the civilisation of which we consider ourselves to be part. It is in only too recent memory that we can all recall the massacre in Rwanda and the Srebrenica massacre in Serbia. We could draw up a list of governments who are treated as legal members of international organisations—from the United Nations through to other bodies—but which, nevertheless, have perpetrated the most terrible crimes against innocent citizens within their own countries. We do not usually describe that as terrorism. Although
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increasingly the definition of "terrorism" as crimes that involve the capricious killing of innocent individuals is accepted in the case of non-state actors, many of us recognise that there are state actors who can fall, if not within this category, certainly within the category of those who use unacceptable and illegal force against their own people.
It is interesting that the United Nations has trodden carefully down the line to which the amendment addresses itself. On the one hand, it could not have put more strongly its total opposition to any form of terrorism. I quote again from the United Nations High Level Task Force introduction by Kofi Annan, the Secretary-General, which states:
"Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all".
I believe that all noble Lords on the Benches of this House accept that sweeping, absolute condemnation of terrorism against innocent civilians.
In the same document there is another quotation from the task force which shows the limitations. It might be described as the decision that no extra-parliamentary or extra-constitutional act can ever be proper. It states:
"We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law".
The amendment addresses these issues. It begins to do so by setting out that the Director of Public Prosecutions should not bring a prosecution in a case where a government have allowed themselves to be involved in acts against humanity or in the acts listed by the United Nations. But the amendment is a moderate one and goes further. It makes it plain that if the person involved in the offence is someone who has been engaged at any point in terrorism involving the death of innocent civilians, then that is a reason why the prosecution should be permitted to go ahead.
I believe this to be an extremely important amendment. It sets limits to what we would regard as legitimate opposition, short of terrorism, against governments who are profoundly oppressive. One need only look at countries such as North Korea, Uzbekistan and various others to see that there are such governments and that they are profoundly oppressive. The amendment would simply tell the DPP not to bring a prosecution on the discovery of an offence against a government of this kind. It makes it clear that that would also exclude anybody who engages in terrorism involving the capricious deaths of innocent civilians.
3.15 pm
At various times in our history, we have been involved in sweeping attempts to uphold governments of all kinds, however justified, legitimate or democratic they may or may not be. There was a time, which those who are historically minded will recall, when under the leadership of Metternich, the governments of Europe lined themselves up against
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radical or revolutionary moves of any kind. That culminated in the great year of 1848, when government after government fell because no attempt had been made to meet halfway the public sense of unrest and deep oppression.
Counter-terrorism could then easily be presented as being in favour of maintaining oppressive governments in developing parts of the world. It is much better, I believe, to make it clear that we are on the side of democracy, tolerance and constitutionality because those are the bases upon which we will defeat terrorism. We need a universal condemnation of the kind in the United Nations High Level Task Force. We do not need a decision to prosecute governments who are involved in acts of complete brutality and violence against their own people. That distinction is part of the underlying emergence of an international rule of law. I beg to move.
Baroness D'Souza: I support the amendment very strongly. I will be brief, because much of what I wish to say has already been said by the noble Baroness, Lady Williams.
My support is based on my experience of living in South Africa under apartheid rule and during years of emergency from the mid-1980s onwards. At that time, even wearing a T-shirt in the colours of the ANC made you liable to arrest and arbitrary detention, and certainly to a roughing up in the streets by the security forces. It is important that one has in the Bill the kind of protections that the amendment affords. There are so many despotic governments in the world and the forces of democracy often have no other way forward in trying not only to obtain democratisation in their country but also to inform people, who are so severely suppressed and oppressed and have no access to information, that an active movement is doing something to try to liberate them and to remind the outside world that that force is alive and well.
Lord Mackenzie of Framwellgate: The amendment causes me deep concern. I agree with a lot of what the noble Baroness, Lady Williams, said about human rights, but the amendment seeks to limit the circumstances in which the Attorney-General or Advocate General could give such consent. Consent could not be given where the country concerned was believed to have a poor human rights record and the person to be prosecuted was thought to have been involved in or to have encouraged action other than a deliberate killing of members of the public.
There is no attempt to define what constitutes grave breaches of human rights; I can see lengthy arguments in court on this very point. It is not just a theoretical point; in the context of the UK/US extradition treaty, the noble Lord, Lord Goodhart, and some of his noble friends have often been very critical of the human rights records of the United States, or certain states within it—so presumably it would be intended that that should be covered by the exclusion as well. It is so wide that it would make extradition virtually impossible in many cases.
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Could my noble friend the Minister say whether the existing provision provides more safeguards than exist in similar situations in France and Germany? Signing a memorandum of agreement and the subsequent monitoring of the situation allow us to shine a light on the human rights record of the regime involved, as well as allowing us to provide human rights training in the legal system of the recipient country. So I would certainly feel uncomfortable if the amendment was passed.
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