Commonwealth Parliamentary Association and International Committee of the Red Cross (Status) Bill
Lord Verdirame Excerpts(3 days, 6 hours ago)
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Lord Verdirame (Non-Afl)
My Lords, I welcome this Bill and I commend the noble Baroness, Lady D’Souza, for sponsoring it. It is a privilege to speak before the noble Earl, Lord Sandwich. As a relatively new Member of this House, I look forward to his speech and I am sorry that it will be a valedictory speech.
I will focus my remarks on the ICRC. Of the two institutions, it is the one with which I am more familiar, both through my practice at the Bar and through my work as an international law academic. In fact, my academic home for many years was the Lauterpacht Centre for International Law in Cambridge, which hosted the ICRC and British Red Cross researchers who worked on the Customary International Humanitarian Law Project. Promoting and working for the faithful application of IHL is one of the core functions that the ICRC has under the Geneva conventions, but of course most of the ICRC’s work is on the ground. Its key functions under the conventions include assistance to victims of armed conflict and, very importantly, serving as an intermediary between parties to armed conflicts. It is especially for this work that the ICRC needs at least some of the privileges and immunities normally accorded to international organisations.
That said, the grant of privileges and immunities is not something that should be agreed to lightly. It means, in effect, that organisations, individuals and their activities are placed outside the reach of the law. The approach of the Bill, quite sensibly, in my view, is to look at the International Organisations Act 1968 as the model. That means that the specific extent of the privileges and immunities that are to be granted to the ICRC and to the CPA is going to be set out in an Order in Council. There is, however, one important difference. Section 1(6) of the International Organisations Act provides that the Order in Council
“shall be so framed as to secure … that the privileges and immunities conferred by the Order are not greater in extent than those which, at the time when the Order takes effect, are required to be conferred”
under the relevant treaty; in other words, in deciding how much immunity and how many privileges are to be granted to an international organisation, His Majesty’s Government would begin by looking at what the relevant treaty says. These treaties will normally be very complex and detailed legal documents such as the UN Convention on the Privileges and Immunities of the Specialized Agencies.
In the case of the CPA and the ICRC, we do not have a treaty that sets out all of the detailed provisions. In paragraph 4, the Explanatory Notes say:
“It is proposed that the Government will conclude written arrangements with the ICRC and CPA which will set out the parameters of the status change. They will include the privileges and immunities which the Government has decided to confer on the organisations”.
Differently from the case of international organisations under the International Organisations Act, we will get the legal document that specifies the extent of the privileges and immunities after the legislation. The document will not be the result of a treaty-making process, but it will reflect what the Government consider appropriate to grant. As I said, the analogy between the ICRC and international organisations, while not a perfect fit, is the best we have. I appreciate that the approach proposed by the Bill remains the most practical one.
It is important to be reassured that the arrangements, which will eventually be agreed with the ICRC and the CPA, will be subject to parliamentary scrutiny. The arrangements will not be a treaty, so they fall outside the scope of the Constitutional Reform and Governance Act 2010. They do not need to be laid before Parliament prior to ratification and there will not be a ratification process in that sense. Given that the arrangements will end up shaping the extent of the immunities that these institutions will be granted under our law, it is appropriate that your Lordships’ International Agreements Committee should scrutinise them.
Others have touched on the important issue in Clause 2 around the protection of confidential ICRC information. I think the reasons for this are compelling, and the definitions of the key terms of “protected ICRC information” and “confidential” are clear and would work well. There is a separate provision on evidence in Clause 3, which mirrors a mechanism we have under other immunity statutes: that the Foreign Office can provide certificates that are conclusive as to the issue of fact relative to the question of immunity. The Foreign Office—I know this from personal experience, having worked on a number of these cases—uses the power very sparingly, and I am sure it would continue to do so. With that in mind, I very much welcome the Bill, and I too wish it a speedy passage.
Israel/Gaza
Lord Verdirame Excerpts(6 months, 4 weeks ago)
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Lord Verdirame (Non-Afl)
My Lords, I too thank the Minister for his wise words in opening the debate. I join others in calling on him and the Government to use their influence on Qatar to ensure the release of the hostages. We also need to record our thanks to the International Committee of the Red Cross and the Red Crescent for the very positive role they have played.
There has been a lot of talk about proportionality in the law on self-defence. I refer to the words that the noble Lord, Lord Pannick, used a few days ago on the test of proportionality. It does not mean that the defensive force has to be equal to the force used in the armed attack. Proportionality means that you can use force that is proportionate to the defensive objective, which is to stop, to repel and to prevent further attacks.
Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says it does and what Hamas has done and continues to do.
Asking a state that is acting in self-defence to agree to a ceasefire before its lawful defensive objectives have been met is, in effect, asking that state to stop defending itself. For such calls to be reasonable and credible, they must be accompanied by a concrete proposal setting out how Israel’s legitimate defensive goals against Hamas will be met through other means. It is not an answer to say that Israel has to conclude a peace treaty, because Hamas is not interested in a peace treaty.
Proportionality also applies in the law that governs the conduct of hostilities, not only in self-defence. The law of armed conflict requires that in every attack posing a risk to civilian life, that risk must not be excessive in relation to the military advantage that is anticipated. That rule does not mean, even when scrupulously observed, that civilians will not tragically lose their lives in an armed conflict. The law of armed conflict, at its best, can mitigate the horrors of war but it cannot eliminate them. The great challenge in this conflict is that Hamas is the kind of belligerent that cynically exploits these rules by putting civilians under its control at risk and even using them to seek immunity for its military operations, military equipment and military personnel. An analysis of the application of the rules on proportionality in targeting in this conflict must always begin with this fact.
There has also been some discussion about siege warfare. The UK manual of the law of armed conflict, reflecting the Government’s official legal position—it is a Ministry of Defence document—says:
“Siege is a legitimate method of warfare … It would be unlawful to besiege an undefended town since it could be occupied without resistance”.
Gaza is not an undefended town. It is true that obligations apply to the besieging forces when civilians are caught within the area that is being encircled, and those obligations include agreeing to the passage of humanitarian relief by third parties. But it is not correct to say that encircling an area with civilians in it is not permitted by the laws of war.
A further point that concerns the laws of war is also of particular relevance to the British Government’s practice. It has already been mentioned that the Government have taken the view that Gaza remains under Israeli occupation, even though Israel pulled out in 2005. The traditional view until 2005 was that occupation required physical presence in the territory. That view is consistent with Article 42 of the Hague regulations of 1907, which states that a territory is occupied when it is actually placed under the authority of the occupying power. Again, it is also the view taken by the UK manual of the law of armed conflict, which reflects the UK’s official legal position and states that occupation ceases as soon as the occupying power evacuates the area. The European Court of Human Rights, in its jurisprudence, has also adopted a similar approach to occupation. So I have always been rather baffled by the British Government’s position on this issue, which, as far as I know, has not changed. Yes, it is true that Israel has exercised significant control over the airspace and in the maritime areas, but even as a matter of plain geography it takes two—Israel and Egypt —to control the land access points to Gaza.
More fundamentally, it is Hamas that has been responsible for the government and administration of Gaza. I appreciate that this is a legal matter on which the Minister may not want to respond immediately but it is an important one, because the legal fiction that Israel was still the occupying power under the laws of armed conflict has been relentlessly exploited by Hamas to blame Israel for everything, while using the effective control that it has over the territory, the people and the resources to wage war.
On a final note, I would like to say something briefly on the way in which the war is being reported. When a serious allegation is made, particularly one that could constitute a war crime, the immediate response of the law-abiding belligerent will be to say, “We are investigating”. The non-law-abiding belligerent, by contrast, will forthwith blame the other side and even provide surprisingly precise casualty figures. The duty to investigate is one of the most important ones in armed conflict. What happened in the way in which the strike on the hospital was reported is that the side that professes no interest whatever in complying with the laws of armed conflict was rewarded with the headlines that it was seeking.