Genocide and Crimes Against Humanity

Baroness D'Souza Excerpts

Thursday 13th September 2018 Lords Chamber

[Baroness D’Souza (CB)]

My Lords, as we heard in my noble friend’s eloquent introduction, genocide has long been determined a crime. The genocide convention was adopted in 1948, came into effect in 1951 and was ratified by the UK in 1970. The crucial and unassailable core of that convention was and is that genocide—whether committed in times of peace or war—is always punishable and that all states signatory to the convention have an obligation to prevent and prosecute genocide. This, of course, was in response to the unspeakable attempts by the Nazi regime to rid Europe of its Jewish populations.

The UK has recognised the need to give effect to the genocide convention: first, by enacting legislation to implement the convention in 1969, and subsequently by incorporating the crime of genocide into the International Criminal Court Act 2001. It is clear that UK authorities are obliged to investigate genocide with a view to ensuring that the crime is prosecuted and punished, whether acts are committed in the UK or abroad.

Since 1948, the convention has undergone many interpretations, legal provisos and reforms for implementation. It is estimated that between 1956 and 2016, there have been 43 genocides resulting in the death of some 50 million people, an equal number of whom have been displaced. The crime of genocide is irrespective of the context in which it occurs: peace, war, internal strife or international armed conflict. The indicators of impending genocide have also been documented, thereby allowing, in theory at least, action to prevent ensuing mass killings. These indicators include: repeated allusions to “us” and “them”; symbols of hatred being forced on pariah groups, such as the yellow star in Poland and its ghettos; pariah groups being defined as less than human—for instance, Tutsis being called “cockroaches” or “vermin” by Hutus in Rwanda prior to the 1994 genocide; trained and armed specialist armies or militia groups; victims being identified and separated as distinct groups, such as the Muslim Rohingya in Myanmar; and, finally, an outright denial of any atrocities having been committed. These are warning signals and inevitably result in massacres.

So what precisely are the responsibilities of member states party to the convention when these warning signs are evident? As I said, all signatories are required to prevent and punish genocide. Genocide is such a heinous crime that its prevention and prosecution qualifies as customary international law. Furthermore, since 2002, the International Criminal Court in The Hague can exercise jurisdiction if national courts are unwilling or unable to investigate or prosecute the offence, but it leaves the primary responsibility to investigate and prosecute alleged criminals to individual states. The UK has unambiguous jurisdiction to prosecute UK and any other nationals and residents for a range of international crimes, including genocide, war crimes and crimes against humanity such as hostage-taking and torture—wherever they are committed within the scope of universal jurisdiction. This is where we must now look at the actions of the UK Government in fulfilling their obligations in today’s world.

The Private Member’s Bill of the noble Lord, Lord Alton, seeks to facilitate individuals or groups applying to the High Court for a preliminary determination that genocide has taken place. If this is determined, the UK Government—that is, the Foreign Secretary—are then obliged to refer the matter to the International Criminal Court or the UN Security Council, or both. This then would be the trigger mechanism for further international action, which is to be welcomed. However, the UK Government’s position is that it is for the international judiciary to determine whether or not genocide is likely to take or has taken place. I assume the International Criminal Court and/or the International Court of Justice are what is meant by international judiciary.

It is worth remembering that the UK already has legislation: the Genocide Act 1969, which has now been taken over by the wider International Criminal Court Act 2001, enables the UK to investigate and prosecute genocide before the UK courts. My concern is that the Government do not attempt to evade their obligations by invoking the authority of the international judiciary—they already have active obligations. An appeal to the High Court would be time-consuming and may not even succeed if, legally speaking, the evidence put before the court is not sufficient to make a determination of genocide. What is most important is that the competent UK authorities investigate all cases of genocide which come before them, are sufficiently resourced to carry out this work and do not, under any circumstances, allow the UK to become a safe haven for the perpetrators of genocide.

The UK Government should also lend their assistance to the International Criminal Court when requests are made for information, transfers or other types of support. Equally, the Government should support, foster and encourage international efforts to secure accountability for genocide through Security Council referrals to the ICC, and related actions to encourage states to surrender suspects to the ICC in response to arrest warrants.

In conclusion, in recent times the UN has put fact-finding missions in place to assess whether genocide has occurred or will occur. The findings of these missions are then used to support action by the UN Security Council, including referrals to the International Criminal Court or some other special tribunal. This is an important process to support and may be a more direct mechanism for action than going through the UK High Court. The major block is the lack of agreement to refer by the permanent five, which is always a matter of politics. Reform of the Security Council—for example, binding its members to vote rather than abstain or vote against—if this were to come about, would be a far more powerful option.

While welcoming any efforts to persuade Governments to act upon their moral and legal obligations, at the same time I would be cautious of shifting responsibility down to a High Court to make a determination that genocide has occurred, with no guarantee that the Government would take immediate notice and action.