Genocide and Crimes Against Humanity

Lord Hannay of Chiswick Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the noble Lord, Lord Alton, is to be congratulated on obtaining this short debate on genocide, that most heinous of collective crimes in the international rulebook—outlawed by a convention some 70 years ago but still all too present in today’s world. On a personal note, I was serving as the British representative on the UN Security Council when the two acts of genocide which disfigured the 1990s, in Rwanda and at Srebrenica, occurred and when the international community was found wanting, unable to do anything to prevent them. I remain deeply ashamed of that failure.

Following those terrible events the world said, as it has said, alas, all too often in the past, “Never again”. In 2005, every member state committed to giving effect to that thought in the norm of the responsibility to protect. If only it had been that easy, but it has not proved so. In recent years we have seen genocidal acts around the world, most blatantly by IS against the Yazidis in Iraq and by the Burmese military against the Rohingya. Nothing effective has been done to prevent those acts or to bring their perpetrators to justice. That is not, I suggest, an acceptable or sustainable state of affairs if we do not want to see our world slipping back into a state of Hobbesian violence.

What can be done? I will suggest four lines of policy to be pursued. First, we really must not give up on the responsibility to protect. It may have given rise to some unexpected and undesirable consequences in Libya but in Kenya, Côte d’Ivoire, South Sudan, the Democratic Republic of the Congo and the Central African Republic, it has saved and is saving many lives. It is not just a recipe for military intervention. Rather, it is a method of deploying everything in the international toolbox—political and economic measures, peacekeeping and peacebuilding—to avoid major breaches of international humanitarian law, including genocide, from ever occurring.

Secondly, I suggest that we must sustain the International Criminal Court in good working order—all the more so in this week when the US National Security Adviser spoke in a most disgraceful manner about the ICC. I hope the Minister will be repudiating those thoughts that he put into the public domain. Where possible, we should try to extend the jurisdiction of the court. Is there really no way of bringing the IS perpetrators of the crimes against the Yazidis to justice? Is there no way over time to do the same for the Burmese military? After all, it took an awfully long time to get General Mladić before a tribunal in The Hague but that is where he is now.

Thirdly, we need to persist, in concert with our French friends and allies on the Security Council, with their initiative to get the permanent members of the council to forgo the use of the veto when there is the risk or actuality of genocide or other gross breaches of humanitarian law. The multiple vetoes by Russia and China of a policy towards Syria are a stain on their records, and we should not accept that as a given for the future.

Fourthly, we should get a bit less namby-pamby about calling out genocide, and here I join the views of others who have suggested that, because that is what we have been all too often in the past. Of course it is correct to say that only a court—the ICC, another international tribunal or national tribunals—can determine definitively whether the crime of genocide has been committed in particular circumstances. However, why can the Government not say that they have seen prima facie evidence that genocide has taken place in a particular set of circumstances? I know that is less far-reaching than the measure that the noble Lord, Lord Alton, is pressing for, but if we were to become a little more forthright about this matter, and to do so in a way that did not pre-empt the determination by the court as the final instance, then we would be starting to put together another building block in the wall of deterrence that needs to be erected against this appalling crime.

I hope the Minister will be able to respond to these four points. We are not going to be able to abolish genocide overnight, but we need to act against it far more effectively than we have done in recent years.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, I first congratulate the noble Lord, Lord Alton, on securing this important debate. The issue of whether and how the UK should make determinations of genocide and other international crimes is one on which I know he holds strong views, as do other noble Lords—many of whom have spoken today—and Members of the other place. I say specifically to him that I know he is a passionate and tireless advocate of his position. I respect that. While the Government may not always be able to agree with him, we cannot but admire the tenacity and resolve he shows in constantly pursuing these issues.

It is right that we properly debate the issues and the rationale behind government policy. That policy remains, as described by the noble Lord, Lord Alton, that any determination of genocide or crimes against humanity, or war crimes, should be made only by competent courts and not by Governments or non-judicial bodies. These could include international courts such as the International Criminal Court, or national criminal courts that meet international standards of due process. We maintain that this position provides a clear, impartial and, perhaps very importantly, independent measure for the determination of whether genocide has occurred.

Your Lordships will be aware that the UK is not alone in the position it adopts. I also mention that our position is well understood, and we are not lobbied by other countries to change our approach. As the former Prime Minister, David Cameron, explained:

“Not only are the courts best placed to judge criminal matters but their impartiality also ensures the protection of the UK Government from the politicisation and controversies that often attach themselves to the question of genocide”.


That is why we do not agree with the provision contained in the noble Lord’s Genocide Determination Bill to empower the High Court of England and Wales to make a preliminary finding on cases of genocide. These are crimes that require the application of a criminal standard of proof on the basis of individual criminal liability—that is, any decision must be made after consideration of all the evidence available in the context of a credible criminal trial of an individual or individuals; it must not be an abstract opinion based on incomplete evidence. That could have the unwelcome and, I know, unintended consequence of prejudicing a subsequent criminal trial. The noble Baroness, Lady D’Souza, was wise in counselling caution in relation to a High Court referral.

I make it clear that this policy relating to the formal determination of genocide in no way undermines the UK’s commitment to the principle that there should be no impunity for perpetrators of the most serious crimes of international concern. My noble friend Lady Nicholson eloquently described the horrors of such repugnant activity, as did the noble Baroness, Lady Flather. I hope that that also reassures the noble Lords, Lord Loomba and Lord Collins, who also made important comments on that aspect.

As a party to the UN Convention on the Prevention and Punishment of the Crime of Genocide, we are committed to taking steps to prevent violations of international law that may amount to genocide and to ensuring that those who are guilty of its commission are brought to justice. I think that it was the noble Baroness, Lady D’Souza, who referred to that, as did the noble Lord, Lord Dholakia. Indeed, while we recognise, as the noble Lord, Lord Alton, suggested, that in some cases the terminology used to describe certain crimes may influence how some people view them, I emphasise that it does not influence the UK’s response; nor do we wait for a determination on the nature of a crime before taking appropriate action. That is why we do not agree that it is possible to address the situation only if a determination of genocide is made, and this is where I respectfully disagree with the noble Lords, Lord Alton and Lord Singh of Wimbledon.

In reference to the noble and learned Lord, Lord Brown, although I certainly do not want to lock horns with such an eminent lawyer, on the question of terminology I see a distinction between opining on an instance of murder by an individual and the much more challenging and complex determination of concluding that acts by citizens of a state against other citizens of that state constitute genocide.

What is the UK response to atrocities? I shall illustrate. Let us take, for example, our action in response to the appalling actions of Daesh in Syria and Iraq, and by the Burmese military in Rakhine, to which a number of your Lordships referred. The UK has played a leading role in the 77-member Global Coalition against Daesh, supporting efforts that have resulted in taking back 98% of the territory that Daesh once occupied and liberating 7.7 million people from its reign of terror. That is a very significant achievement.

We have also worked closely with the Government of Iraq to negotiate Security Council Resolution 2379 on Daesh accountability. That resolution, passed unanimously almost exactly a year ago, established an investigative team to collect, preserve and analyse evidence of Daesh’s appalling actions, and I hope that that reassures the noble Lord, Lord Collins. That team is led by Karim Khan QC, a highly experienced British advocate. It will consist of international and Iraqi experts, and will work closely with both the Government of Iraq and organisations already collecting evidence of Daesh’s crimes. We will provide Karim Khan and his team with every assistance to collect vital evidence before it is lost or destroyed.

The noble Lord, Lord Alton, referred specifically to Darfur, the Niger Delta and to Rwanda. On Darfur, the UK supported the United Nations Security Council referral to the International Criminal Court and has been a strong supporter of the court in helping to fulfil its mandate, providing almost £9 million last year alone. That funding is also allowing the court to conduct preliminary examinations and investigations across the globe, including the situation in the Niger Delta and the Middle Belt states. In Rwanda we supported the United Nations Security Council, acting under chapter 7 of the UN Charter, to establish an international criminal tribunal for Rwanda in 1994 and subsequently provided political and financial support until its closure.

The noble Lord, Lords Alton and Lord Hannay, and others also spoke about Burma. Following the allegations of serious human rights violations in Burma against the Rohingya, including sexual violence, we are taking action to pursue justice and to support the victims. Let me reassure the noble Lord, Lord Dholakia, on that. We co-sponsored the creation of the fact-finding mission, together with resolutions condemning the human rights violations and calling for unfettered UN access. We deployed our own team of experts in sexual violence to assess the situation on the ground. We are also applying pressure on those responsible for the violence, through targeted sanctions against members of the Burmese military. I say to the noble Baroness, Lady Flather, that among other things, our £129 million of humanitarian funding is providing psychosocial support for the victims in camps in Bangladesh.

On the comments about Burma by the noble Lord, Lord Alton, the Government are clear in their condemnation of the atrocities in Rakhine. The Foreign Secretary believes that action is warranted in the light of the fact-finding mission’s findings. The Foreign Secretary plans to convene a meeting of fellow UN Security Council Foreign Ministers at the UN General Assembly this month to discuss how best to ensure that perpetrators of atrocities are brought to justice. I say to the noble Lord, Lord Dholakia, and others who raised the question of Aung San Suu Kyi—yes, we believe that she should have spoken out more against the atrocities that the military has perpetrated in Rakhine. We have consistently urged her to use her moral authority in leadership to ensure that the Rohingya refugees can return safely.

I think it was the noble Lord, Lord Hannay, who, specifically in relation to the International Criminal Court, asked about the UK’s response to the recent US threat of sanctions. We have always been clear that the ICC can play an important role in ending impunity for the most serious international crimes. It has our full support in pursuing the mandate that it was given under the ICC statute. We have noted recent comments. I think that Mr Bolton does tend to have a bit of form in being sceptical about certain international organisations, but that does not diminish in any way the UK’s commitment to the ICC.

I say to the noble Lord, Lord Thomas of Gresford, that in relation to Iraq the UK is co-operating fully with the ICC prosecutor as her office carries out due process in this preliminary examination. We expect to be able to fully satisfy the prosecutor that the UK efforts to investigate and, where appropriate, to prosecute—

[Lord Hannay of Chiswick]

I am most grateful to the Minister for giving way; I think that she is drawing to a conclusion. However, she has not really addressed issues raised by myself and several other noble Lords, which fall short of the idea that is put forward in the draft legislation proposed by the noble Lord, Lord Alton, of establishing a judicial determination, but which suggests that the Government should be more open to stating, in circumstances where they have compelling evidence, that they believe there is prima facie evidence of genocide.

If the Minister is not armed with the Foreign Office legal advisers’ rock-ribbed determination not to move on this matter, will she please take the matter back and, in writing, tell noble Lords who have participated in this debate whether the Government are prepared to contemplate taking a more open attitude towards statements of the sort that I have suggested, which are not—I repeat, not—legal determinations?

[Baroness Goldie]

I listen, as I always do, to the noble Lord with great interest. I had endeavoured in my introductory remarks to indicate what the Government’s position is and why we hold that position. The Government are always interested in the observations and contributions of your Lordships and this is no exception. I shall certainly ensure that the noble Lord’s reflections are relayed to the department. More than that I cannot say.