Genocide and Crimes Against Humanity

Lord Thomas of Gresford Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I thank the noble Lord, Lord Alton, for introducing this debate and I join the noble Baroness, Lady Nicholson, the noble Lords, Lord Brown and Lord Dholakia, and others, in recognising the passionate, lifelong commitment of the noble Lord, Lord Alton, to humanitarian issues and to human rights. He really is outstanding in this area and has been a champion for very many years.

The Rome statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Under the Rome statute, the International Criminal Court has limitations. There are time limitations, as the noble Lord, Lord Singh, mentioned, and it can investigate and prosecute these four core international crimes only in situations where it finds states are “unable” or “unwilling” to do so themselves, a point made by the noble Baroness, Lady D’Souza.

The jurisdiction of the court is complementary to the jurisdictions of the domestic courts. Of course, in this country we have not had any prosecutions for the crime of genocide. In 2007, I was engaged in the court martial at Bulford arising from the death of Baha Musa. The defendant, an Army corporal, pleaded guilty to the war crime of inhuman treatment. That is the only conviction ever recorded in this country for a war crime, as defined in the Rome statute.

In 2014, the now discredited and struck-off solicitor, Philip Shiner, jointly with a human rights organisation, the European Center for Constitutional and Human Rights, submitted a dossier to the International Criminal Court of alleged war crimes—allegations of beatings, electrocution, mock executions and sexual assault committed, it was alleged, by British forces in Iraq. The complainants also alleged that the United Kingdom was unable or unwilling to bring these cases to court, which would have given jurisdiction to the ICC.

On 4 December 2017, the court’s Office of the Prosecutor, notwithstanding its own investigation into Shiner and his activities, nevertheless announced that it saw a reasonable basis to believe that members of the UK Armed Forces committed war crimes against detainees in Iraq. Prosecutors in The Hague are now engaged in a phase 3 assessment of whether genuine investigations and prosecutions are being conducted in the United Kingdom in respect of the 60 or so cases before them. The fairness of British justice is under international scrutiny at this moment.

Generally, the International Criminal Court has jurisdiction over crimes only if they are committed in the territory of a state party to the Rome statute, or if they are committed by a national of a state party. This has its limitations because, clearly, large jurisdictions such as the United States are not state parties.

The exception to this jurisdictional rule—with which we are particularly concerned today—is that the ICC may have jurisdiction over crimes if its jurisdiction is authorised by the United Nations Security Council: in other words, it can go outside the state parties and deal with crimes committed elsewhere. As the noble Lord, Lord Hannay, pointed out from his own unhappy experiences involving Rwanda and Srebrenica, this is insufficient and unsatisfactory. I agree with him that it is important to try to extend the jurisdiction of the International Criminal Court beyond what happens in the territory of a state party.

At the moment, how do allegations come before the Security Council? Despite being a permanent member, this Government have resisted attempts on a number of occasions to make a declaration that crimes committed by Daesh amount to genocide. As noble Lords have pointed out, this is notwithstanding that declarations to that effect have been made in a resolution of the Parliamentary Assembly of the Council of Europe and by the European Parliament in March and April 2016, in addition to the declaration by the US Secretary of State to which the noble Lord, Lord Brown, referred.

The United Kingdom is itself under the scrutiny of the ICC for its own actions. It is therefore demeaning for it to seek to shelter behind legalities—to argue that genocide is a matter for legal, not political decision, and that the Government are not a prosecutor, judge or jury, so cannot come to a conclusion. I await with interest the Bill of the noble Lord, Lord Alton, on the legal determination of genocide. No doubt, I shall support it. As the noble and learned Lord, Lord Brown, said a moment ago, how is it justiciable for the Government to take, for example, Burma to the High Court in this country to seek a declaration—with the Burmese Government having the opportunity to put forward their case—that what they are doing to the Rohingya in Burma is genocide? I do not find that an attractive solution.

In December 2004, regulations laid under the International Criminal Court Act 2001 adopted the text of the Elements of Crimes defined by the Assembly of States Parties under the Rome statute. Nothing could be clearer. Genocide in all its aspects requires, first, an intent to destroy in whole or in part a national, ethnical, racial or religious group. The second element is knowledge: knowledge by the perpetrator to be inferred from relevant facts. Thirdly, the conduct complained of must be part of a manifest pattern of similar conduct directed against the group. “Manifest” is an objective qualification, and I have to agree with the noble Lords, Lord Dholakia and Lord Loomba, that Burma must qualify for committing acts of genocide.

Under Article VIII of the 1948 genocide convention, the fact of genocide does not have to be established in a court of law of one of the “contracting parties” before complaint may be made. This country is a “duty carrier”, as the noble Lord, Lord Alton, put it.

[Baroness Stedman-Scott (Con)]

My Lords, I apologise for interrupting the noble Lord, but although we have some slack after some noble Lords have scratched, we are running out of that time. If the noble Lord could bring his remarks to a conclusion, we would be grateful.

[Lord Thomas of Gresford]

I am very grateful—I have a further paragraph, if your Lordships will permit me.

Article VIII says:

“Any Contracting Party may call upon the competent organs of the United Nations to take such action … as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”.


Since the implementation of the Rome statute, guilt or innocence is to be established in the International Criminal Court on a charge brought by the Office of the Prosecutor.

What does it say of this country if, with manifest evidence of genocide in the Middle East, Darfur or anywhere, it cannot bring itself to “call upon” the Security Council to set the wheels of the ICC in motion? It is a manifest breach of the UK’s undertaking to prevent and to punish genocide under Article I of the 1948 convention. Our reputation in the world is likely to be seriously damaged.