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Lord Avebury: I am delighted to follow the noble and learnedLord, Lord Archer. I should like to expand on one aspect of the important case that he has made out, that is, the anomaly that exists in relation to Common Article 3 of the Geneva Conventions, which deals with offences against civilians committed in the course of domestic armed conflicts.
The noble Lord, Lord Archer, referred to crimes committed against British citizens. I should like to refer to the events at Balibo, East Timor, in early December 1975 when, before they acknowledged the invasion, the Indonesians sent clandestine forces into the territories and murdered five journalists, including two British citizens. That crime has from time to time been investigated--the Committee may think inadequately, because no one has ever been brought to justice--but Mr Yunus Yosfiah, the Commander of the Indonesian troops in Balibo, was at one time a guest of Her Majesty's Government and, unknown to anybody here at the time, attended a defence college in this country.
If in the future such a case occurred, in which a person accused of murdering our own citizens happened to enter our jurisdiction, we would not be able to try him because the offence would have been committed, as the Indonesians had claimed, in the course of a domestic armed conflict. I do not want to develop the argument whether the fourth Geneva Convention applied to the Indonesian activities in East Timor because that has never been clarified. However, if this Bill is left as it stands and we do not have jurisdiction over Article 3 offences, a criminal who had murdered British citizens in the course of a domestic armed conflict would not be triable before courts of the United Kingdom. We should have to rely on the ICC to make a request for arrest and extradition of such a person to be brought to justice.
Lord Lamont of Lerwick: I thank the noble Lord for giving way. Perhaps I may ask whether there is a reciprocal proposal to his. Would it not follow from his proposal that we should have to accept foreign jurisdiction over crimes that might have been committed here? For example, if a member of Sinn Fein was released from prison under provisions in this country and then arrested in New York, he would have to stand trial in New York if he had murdered an American in this country.
Lord Avebury: I think most authorities would acknowledge that the threshold for the application of Article 3 has not been reached in relation to Northern Ireland. There has to be a certain level of armed violence before a conflict can be treated as non-international within the meaning of the Geneva Conventions, and particularly within the meaning of Article 3. What has happened in Northern Ireland, or what may happen in a similar situation in the United
A more recent example which shows the absurdity of the situation outlined by the noble and learned Lord, Lord Archer, is what happened in Bosnia. At one point, the Bosnian conflict was a domestic armed conflict--a non-international armed conflict, to use the terminology in the Geneva Conventions. The states concerned were then recognised by the United Kingdom and others and it became an international armed conflict. Therefore, a crime committed on one day against civilians would not have been justiciable in the British courts under these proposals, and on the following day it would have suddenly become justiciable, even though the crime itself would have been of exactly the same nature and extent.
I very much hope that the Government will think again about this issue. As the noble and learned Lord, Lord Archer, said, we are getting into a very difficult position when we attempt to distinguish between domestic armed conflicts and conflicts of an international character. I would point out to the Committee that the vast majority of conflicts nowadays occur within state boundaries and not between states. When the Geneva Conventions were first accepted by the international community, international conflict was the rule. Now it is not; it is the exception. If we look at the conflicts in Africa, for instance, the only international conflict which has taken place in recent years is the one between Eritrea and Ethiopia, whereas one can think of countless conflicts which have taken place within the borders of states such as Sierra Leone, Angola, Sudan and so on. I do not need to enumerate them.
The vast majority of crimes committed against civilians are, to use the Geneva Conventions terminology, Article 3 crimes, and they will not be covered by the Bill. I hope that the Government will think again and agree to the amendment proposed by the noble and learned Lord, Lord Archer, or something very like it.
Lord Goldsmith: I wish to say a few words on this topic, which I also raised at Second Reading, not because I believe for a moment that the case made by my noble and learned friend Lord Archer and the noble Lord, Lord Avebury, is not convincing--indeed, overwhelming--but because it is an important point.
We should remember that unless and until all countries ratify the Rome statute, there will be gaps in jurisdiction. People who do not come from countries which have ratified, or who have not committed acts in places which have ratified, will not be subject to the court's jurisdiction except in exceptional cases. The concern is that there will be tyrants and despots who have committed atrocious and vile acts and who may not be subject to the jurisdiction of the court. What
As my noble and learned friend said, other countries have taken that view. I mentioned at Second Reading that my understanding then was that that was the position in relation to Canada and New Zealand. I mentioned also, I believe, Belgium and Germany. I hope that my noble and learned friend the Attorney-General will be able to confirm that that is the position. I am grateful for information received from the Lawyers Committee for Human Rights, New York, which has also drawn to our attention, as my noble and learned friend Lord Archer said, the position in relation to South Africa. Indeed, the member states of the Southern African Development Community have apparently similarly adopted as an intention an ICC ratification kit, which will include universal jurisdiction.
Those countries have taken that line. The question is: what anomalies will there be if we do not take the same line, and what are the objections to our doing so? As my noble and learned friend Lord Archer said, an argument advanced at Second Reading was that we were not required under the statute to assume universal jurisdiction and somehow, therefore, we ought not to. I entirely agree with his observations on that. The list of statutes to which he referred indicates that we do take universal jurisdiction in some cases. There is no clear and single strand which links them and there is no reason in law why we should not take it here.
But what, in clear terms, are the anomalies? First, two men who are alleged to have committed the same offence could be together in England. One will be subject to our courts and our law, and the other we could not touch: the one because he is a British subject and the other because he is not. In those cases, the International Criminal Court may not be able to touch them either. How absurd.
The second anomaly is that the victims of these crimes may have been British subjects, and yet still we cannot deal with those crimes because the alleged perpetrator is a national of another country and the victim suffered abroad.
Thirdly, we may even find ourselves, if I understand the position correctly, extraditing someone to another country--not to the country of nationality of the alleged perpetrator but to one of the countries I have mentioned, New Zealand or South Africa. We are not ourselves prepared to assume jurisdiction but we may send this person to another country.
Fourthly, and most frightening, is the anomaly of the distinction between crimes such as torture and genocide. Will we yet again see the horrific spectacle--which I believe we came close to with Pinochet--of arguing in a British court that if he killed people quickly, it was not torture and we have no jurisdiction; if they had slow and lingering deaths, that was torture and we had jurisdiction under the torture convention.
What are the objections to this course? The practical objection is that we cannot try someone who is not here. That is straightforward; we do not have any ability to bring someone here, save through extradition. What about the problem that we may not have the evidence here? The guidelines of the noble and learned Lord the Attorney-General will deal with situations where there is not the evidence sufficient to meet a prosecution.
There is a middle course--and I, like others, look forward to hearing the Government's response--the Canadian course, which is to limit universal jurisdiction to the extent that there has at least been the connection that the perpetrator in that case in Canada has been here in the United Kingdom. I cannot see any reason why, at least in that case, we should not accept universal jurisdiction.
At the end of the day, tyrants must know that there is no place for them to hide. The purpose of the Bill and the statute is that there should be nowhere for tyrants to hide. If there is to be somewhere that they can hide, let there at least not be somewhere for them to hide in this country. Let them know that in this country, at least, we will assume jurisdiction; that if they come here and try to hide here, they will find no peace.
I shall be very short. Unlike the noble and learned Lord, Lord Archer, and the noble Lord, Lord Goldsmith, I speak not as a Queen's Counsel but as a humble member of the lower profession. I think that it is quite wrong that there should be any chance of the escape from justice to which those noble Lords referred. The burden of proving that there is no risk of that falls squarely and fairly on whoever is to reply for the Government. I do not want to embarrass the Government, but I think that a case has been made out for them to think again about this important issue.
Why have we not heard from the Conservative Benches? Are Members opposite not concerned about people being able to escape justice? I am mesmerised by their silence. I hope that my noble and learned friend will see an opportunity to reflect on this important issue. No one should be allowed to escape justice; and that is the risk that we run.
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