Baroness Kennedy of Shaws
Main Page: Baroness Kennedy of Shaws (Labour - Life peer)Daesh Crimes: Accountability (JCHR Report)
Baroness Kennedy of Shaws Excerpts
Baroness Kennedy of The Shaws
That the Grand Committee takes note of the Report from the Joint Committee on Human Rights Accountability for Daesh Crimes (2nd Report, HL Paper 121).
Baroness Kennedy of The Shaws (Lab)
My Lords, it is my honour to introduce the Joint Committee on Human Rights’ report, Accountability for Daesh Crimes; it is the JCHR’s second report of the 2024-25 Session, which started last December. In this work, our committee held six oral evidence sessions and heard from expert witnesses and independent officials, including the Independent Reviewer of Terrorism Legislation; SO15, the counterterrorism unit of the Met Police; and the Crown Prosecution Service.
Before I proceed with introducing the report, I should pay my respects to the exceptional chair of our committee, the noble Lord, Lord Alton. He is unable to be in the Room today as he is recovering from a serious accident that took place at Victoria Station last week—it was a collision involving a bus on which he was travelling—which has caused him some serious damage. He will probably be out of the Chamber for six to eight weeks, so I am standing in his place; I cannot do him justice, but I know that we all want to see him recover from that terrible accident.
The case of the Yazidi genocide has been close to the noble Lord’s heart—and, indeed, to mine—from the early days of the Daesh genocidal campaign. Like me, the noble Lord has visited the Yazidi camps and got to know many of the Yazidi community in the years since. He did not give up on the case, despite very poor responses from successive Governments.
Let me explain something of the background. Daesh, which is also known as Islamic State, ISIL or ISIS, is a non-state terrorist organisation that emerged from al-Qaeda in Iraq in the early 2000s; if anything told us that the Iraq war was a folly, those repercussions point out very clearly that it was. Daesh has targeted religious minorities, such as the Yazidis, with the intention of destroying diverse ethno-religious identities. Women and girls have been specifically targeted and subjected to abductions, forced conversions, forced marriage, rape and sexual violence.
One of the horrors is that, at first, their own community was reluctant to have young women who had been violated over and over again returned to it. Eventually, its religious leadership took a different position and the women could be returned—but not with any of the babies they had conceived. So one of the sadnesses is that I have met girls who were only 14 or 15 when they were impregnated. They left behind babies whom they loved because they also wanted to return to their parents. It was absolutely heart-rending to be confronted with that.
It is estimated that 5,000 Yazidis were killed, while more than 200,000 were displaced from their homes. Some 2,500 to 2,700 were abducted and remain missing; we do not know where they are. In 2023, the UK Government acknowledged that acts of genocide were committed against the Yazidi people by Daesh. Earlier today, a number of Yazidi survivors visited this House. They have been closely following this inquiry by the Joint Committee on Human Rights because they want answers as to why British Daesh fighters have not been prosecuted for their involvement in international crimes against the Yazidis, which, as I said, His Majesty’s Government finally recognised as a genocide in August 2023.
It is interesting that the German criminal courts have pronounced three judgments on genocide by members of Daesh in dealing with crimes against the Yazidi people. Yazidis are very much like the Jewish community in that, over decades and centuries, they have been discriminated against, subjected to persecution, called infidels and suffered other abuses. As the community tells us, they have endured 74 genocides, and the 2014 genocide by Daesh is in some ways ongoing because of those missing people. We wonder where so many of those women have gone. Are they still in households run by those men and their wives? Many of the women were themselves abusers of their victims.
This was also the genocide that some 900 British citizens joined. They left their lives in Britain behind and travelled to Syria and Iraq to join Daesh, and they may well have taken part in genocidal activities against the Yazidis and other religious minorities. Some 425 jihadist volunteers are now back in the United Kingdom. Before this inquiry took place, the noble Lord, Lord Alton, and I met the contingent of the police that deals with war crimes or international atrocity crimes. It became clear that there had never been proper inquiries into the domestic circumstances of those who returned, whether they ever interacted with the Yazidi community and so on.
His Majesty’s Government responded to a Parliamentary Question asked by the noble Lord, Lord Alton, that:
“Over 32 individuals have been convicted of terrorism offences in British courts after previously travelling to the Iraq/Syria theatre of conflict as Daesh fighters”.
Just think about it: 32 convictions out of more than 400 who returned to the UK. That was for terror-related offences only, not their involvement in war crimes, crimes against humanity or genocide. This response was the very reason why Yazidi organisations and experts wrote to the Joint Committee on Human Rights and have been writing to people like me and the noble Lord, Lord Alton, seeking our views. They want to know why this has been the case.
The noble Lord, Lord Alton, is the chair of the Joint Committee which continued the inquiry and published its findings shortly before recess. His Majesty’s Government have now responded to the findings and recommendations, and I wish to engage with the responses. None of the people who have returned have been convicted for the international crimes committed by Daesh in Syria and Iraq. This means that there have been no successful prosecutions of Daesh fighters in this country for any of those crimes that I have mentioned—genocide, crimes against humanity and war crimes.
The focus of the police and the CPS has been on prosecuting terrorism offences. The report calls for a fundamental change in approach to focus on international crimes such as genocide and war crimes. Otherwise, for what purpose do we sign these treaties? Jonathan Hall, King’s Counsel, the Independent Reviewer of Terrorism Legislation, told the Joint Committee on Human Rights:
“I detected that the approach of counterterrorism police … was much more about risk management and much less about accountability”.
That is the purpose of legislation on war crimes, crimes against humanity and atrocity crimes such as genocide. The police are not really familiar with war crimes. The unit is just not trained to ask the right questions. Its approach is to ask, if this person might return, how to investigate them and potentially get a conviction under terrorism legislation and make sure that the UK is safe. It is important for them to do that, but there are other avenues that should have been explored.
The International Criminal Court came into existence only in 2000. We introduced it into domestic legislation through the International Criminal Court Act 2001, but only British nationals or British residents can be prosecuted under that legislation for genocide, crimes against humanity or war crimes. In our courts, it is limited to people who are British. As it turns out, most of those people are British and were born here, but it is very limiting. Other countries do not have such limited legislation. Even the United States, which started in the same way as us by prosecuting only people who are American nationals or who are residing in the United States, realised that that limited it because people often come to countries as visitors or find their way in, and that is the very moment when they should be charged for the crimes that they may have committed.
Ms Amal Clooney, a colleague in my chambers, gave evidence to the committee. She said that the current limits of the UK legal framework create
“a key barrier to the exercise of universal jurisdiction”.
She noted:
“The UK’s legal framework deviates from that of both civil law jurisdictions in Europe, such as Germany, and other common law jurisdictions around the world”.
We should be thinking about our current position.
The report calls on the Government to allow the UK to exercise universal jurisdiction over these crimes. This would mean that anyone who could be prosecuted in UK courts for these international crimes should be. Amendments to the Crime and Policing Bill were proposed in the report to achieve this.
Unfortunately, the responses received from His Majesty’s Government’s so far are not very encouraging. Their response in saying that prosecutions require strong evidence was correct—they do. However, they failed to use UNITAD’s evidence. UNITAD is the investigative body that was gathering evidence in Iraq and Syria about the crimes committed by Daesh. We invested millions of taxpayers’ money in contributing towards that UN mechanism, yet we failed to access it to see if there was evidence that could be used against those British returnees who were convicted only of belonging to a terrorist organisation and joining it abroad.
His Majesty’s Government also responded that investigations and prosecutions should take place close to where the crimes occurred, meaning that Iraq should be prosecuting people for these crimes. If you were to count on your hands how many rape prosecutions take place in Iraq, you will find that there are very few. A much easier way is that you have somebody in custody who is a member of Daesh. If it can be shown that they were a member, that very membership can bring down the death penalty. So, you do not bother with securing justice for the Yazidi women who were raped over and over again, and sold and resold, and treated as chattels.
Iraq and Syria have not been places where judicial systems were likely to deliver justice—certainly not for the women. Concerns raised there in relation to the right to a fair trial and weak processes, among others, continue. To this day, these countries do not have legislation that would enable them to prosecute Daesh fighters for international crimes, such as the ones I have mentioned—genocide, torture and so on.
His Majesty’s Government mentioned that the ICC is better equipped to prosecute international crimes. That is in many ways true but not for Daesh crimes, as the ICC does not have territorial jurisdiction over the territories of Syria and Iraq, where most of the crimes were perpetrated.
The very premise of the principle of universal jurisdiction is that international crimes cannot be effectively prosecuted in some countries because of ongoing conflict, involvement or complicity of those in power, which is so often the case, lack of laws, a weak judiciary, corruption and so on.
His Majesty’s Government did not accept the Joint Committee’s assessment of the lack of co-operation between UK investigative and external prosecuting bodies. Indeed, even our own domestic investigative and prosecuting bodies did not seem to be connected regarding the kind of questioning that could have taken place. It could have been, “What were your domestic arrangements while you were living in Iraq? Where were you living? Who made up your household?” You do not start by saying, “Did you rape women?” You start by finding out how people were conducting their lives when they went home at night having beheaded so many people.
His Majesty’s Government identified some developments in co-operation with international mechanisms. However, there was no working relationship with UNITAD for the entire time the mechanism was in existence. UNITAD has now been parcelled up and handed over to UN offices in the United States and it looks as though it is folding. We still do not know the reason why there was no co-operation between the British authorities and UNITAD. The response from the Government is unclear on how they work with the IIIM, which is the mechanism for investigating the crimes that took place during the Daesh interlude in Iraq and Syria. How is evidence collected by the mechanism and could any of it have applied to British citizens who joined this jihad?
I was disappointed to see that His Majesty’s Government did not welcome the recommendation on universal jurisdiction, which is the clearest thing. People from Iran, for example, come to this country not wearing elaborate, theocratic outfits that say, “I am part of the revolutionary guard” or whatever, but they arrive here suited and booted to take their children to look at our universities to see whether they should study here. They come in, but we are not able to arrest them, even if they have been identified as members of the revolutionary guard, people who have perpetrated torture and so on. That is true of others who have committed grievous crimes: if they are not residents or do not have a British passport, nothing can be done.
The Joint Committee on Human Rights has twice issued the recommendation that we should revisit our universal jurisdiction law. It is there in the Daesh inquiry report, and it is in the Crime and Policing Bill report that we prepared. That recommendation was also supported in the International Development Committee report. The Government’s argument is that,
“the question of whether universal jurisdiction should apply to a particular crime is best approached collaboratively between states through treaties”.
Treaties are all fine and good, but they have to be translated into law and then into practice. There are existing treaties that impose obligations upon the UK to ensure that international crimes are criminalised and that the perpetrators are punished. This one seems to have slipped through the net; it leaves out anyone who is not a UK citizen or resident, so significantly limits our Government’s ability to deal with international crimes effectively.
Further, the report engages with the issue of deprivation of citizenship and Britons in the camps in north-east Syria, which I will also briefly cover. The inquiry found that the UK Government have, in some circumstances, stripped individuals of their citizenship. Katherine Cornett from Reprieve told the committee that
“there is a serious lack of transparency when it comes to the use of this power… The UK now uses this power more than almost any other state… Because of the lack of information, there is no demographic data about who has been stripped of their citizenship and about their gender, ethnic background or religion”.
The report calls for greater transparency over this power and how it is used. It also calls for periodic independent reviews of the use of the power.
I will just deal with the Britons who are in those camps. We saw a film by a very brave war correspondent from Sky News, which showed her interviewing a British person through the gates of a prison. It was obvious that he was British from his speech and so on, and I think he indicated that he was indeed British. So there is somebody in there, and we should be making inquiries about whether he should be brought here and put on trial.
The inquiry established that UK nationals are currently detained in camps in Syria. They are essentially open-air prisons with appalling conditions; there is a lack of food and medical assistance, and threats of violence are commonplace. The UN special rapporteur on trafficking in persons, especially women and children, Siobhán Mullally, said:
“The particular risks faced by children … must be urgently addressed and without further delay”.
They are at risk of serious abuse and of possible trafficking onwards for questionable purposes. She continued:
“Repatriation of families currently detained indefinitely in north-east Syria is a necessary first step to meeting the UK’s domestic and international law obligations of protection, effective investigation and provision of effective remedies for the serious human rights violations ongoing”.
The report calls for a proactive approach in identifying and locating minors and, where feasible, repatriating them as soon as practically possible. It also calls on the Government to undertake every effort to prosecute British individuals held in camps in Syria where there is evidence that they were involved in grievous crimes. The Daesh inquiry was an important exercise conducted by the Joint Committee to ensure that we deal with the past and the issue of Brits being involved in some of the worst atrocities seen in recent years. The very purpose of this report was to draw this to the Government’s attention, and we hoped for a more positive response from them. I can hope only that the Government will not pass on this important opportunity for a more effective and adequate way of responding to the scale of these crimes. I beg to move.
Baroness Kennedy of The Shaws (Lab)
The noble Lord has the sympathy of all of us who are barristers, because we have all had the experience of being handed a brief at the last minute and having to struggle with issues that we had not anticipated. I will raise some of the issues that concern me still, despite his brave efforts to deal with this important report.
First, the Government are sticking to their old position that things are best investigated close to where they took place. That is a principle that we would all agree with, except in circumstances where there is no indication of that being possible, as in the places about which we are talking. We know that both Syria and Iraq have prosecuted no one. They have certainly arrested people and passed death penalties on people for being members of Daesh or ISIL, but there has been no investigation into, for example, the enslavement, the constant raping and the selling on of women, who are dealt with as commodities. There was an occasion when 19 women were put into a cage and set on fire because they refused to convert.
There are all manner of instances about which there is clear evidence, and I believe that we can be satisfied that neither Syria nor Iraq have given any kind of resolution, particularly to the Yazidi people, for the crimes that were committed by the members of this jihadist organisation. Many members in Iraq have been rounded up; there is a very peremptory trial and they are given the death penalty, but there is no investigation into the nature of the crimes that were committed and no sense that the wrongs committed against the Yazidis were given any kind of airing. That is not what justice is about.
The Minister mentioned Germany. There have been eight convictions in Germany, three for genocide and five for crimes against humanity. A number of those convictions were against women. Let us be very clear that these women were married to men who were the active service agents beheading people and doing the killing. The women were convicted of complicity in grievous crimes, where they were the orchestrators of the passing on of women to other men for their abuse to take place. Women are therefore involved in this.
When the noble Lord, Lord Alton, and I met the police and the unit that deals with anything international, it became clear that for the people who were brought back and the 30 people who were convicted, as I mentioned, there was no question—the officers were frank—of the investigation involving interrogation of the kind that I mentioned in my opening address, asking what their domestic circumstances were, whether they were living with a wife or more than one wife. Often the additional women who were raped were referred to as being second and third temporary wives, and fourth, fifth and sixth wives. I am afraid that the women were complicit, too, in grievous crimes. It is why prosecution of crimes against humanity were successful. The lawyer who helped orchestrate the work in Germany was British, Amal Clooney. She was there showing how Germany’s system of law could be used because there was a willingness there to do it.
There is no indication of there being a willingness in Britain to do it. That is what has concerned us in receiving the evidence in preparation for this report. As I say, in Iraq, there have been no prosecutions for international crimes, genocide, crimes against humanity, rape or servitude. There have been none, nor in Syria. I am not sure that we can be confident at this moment that that is going to be a priority for the Syrian regime.
These people were British citizens. They have returned. The skills were not present within the police to deal with this. It is not easy to recite what the normal processes would be, such as whether the police think that there might be something that they could refer to the Crown Prosecution Service, which would then decide whether there were appropriate crimes and so on. There was no question of the Crown Prosecution Service doing anything other than determining that there was evidence that these people went to Iraq and signed up to be part of ISIL and therefore were guilty of a crime under our law, but there was no investigation of whether more grievous crimes had been committed. The writ still runs. These people could easily be brought in and questioned tomorrow, but there is no indication of that happening.
One of the ways in which you could do that is by accessing the evidence gathered. I can tell noble Lords that many organisations—community organisations, women’s organisations, investigative bodies—handed over information that they had received to the IIIM. UNITAD was the receiver and archiver of the evidence. That body has been dismantled, and the archive has been handed over and put into archives at the UN and in the United States of America. What is in that? Are there references to people? Are there incidents that could be investigated that would give testimonies that, within our law, could support prosecutions of these grievous crimes?
The questions asked by the noble Lord, Lord Anderson, are ones that I hope the Government will take away and think about in terms of transparency and proper review, but that is not happening. We were convinced that an inadequate review was taking place.
Also, when we asked the police whether they had ever requested evidence from UNITAD? The answer was, “We do not think so”. It would be interesting to find out properly. Was UNITAD ever asked whether it had evidence that might link to British people, English speakers? The other question is why can we not deal with this business whereby we have put such a constriction around those who can be prosecuted under universal jurisdiction, thereby limiting it. Noble Lords heard from a colleague about the fact that when this originally came before this House, when I was a comparatively new Member, we managed to extend the legislation from citizens being the only people who could be prosecuted to people who had residence here. The United States had moved away from that. We should be making it clear that it should be possible to arrest anybody who ends up in this country, even those who are not citizens, although many of these people are, so that justice can be done, and they can stand trial before a court in this country.
The Government should sign up to the Ljubljana-The Hague convention so that there is proper mutual assistance.
I am disappointed, but I promise my noble friend Lord Katz that I am not holding it against him. I know he got the brief at the last minute, and many of us have been in his circumstances before more difficult tribunals than this one. I hope that the Government take this debate away and think about some of these serious questions.