International Humanitarian Law: Protecting Civilians in Conflict

Tom Brake Excerpts

Tuesday 18th June 2019 Westminster Hall

[Tom Brake (Carshalton and Wallington) (LD)]

It is a pleasure to serve under your chairmanship this morning, Mr Bone. I congratulate the right hon. Member for Cynon Valley (Ann Clwyd) on initiating this debate. As Members will know, she chairs the all-party human rights group, and I am vice-chair of the all-party group on drones. We made a joint bid to the Backbench Business Committee, and I am pleased that we secured this debate.

Before coming here this morning I dropped in on Richard Ratcliffe. I recommend that people do that; he is outside the Iranian embassy, which did a good job of suddenly deciding its front needed painting and that it therefore needed some screens, which obstructed Richard Ratcliffe, or the view of him. I am pleased the police were not willing to move him on, which is apparently what the Iranians asked them to do. I encourage Members to visit him. In some respects, he and his wife are civilian casualties of an unofficial—well, there is not exactly a conflict or war between the UK and Iran, but there are certainly casualties.

It is right to debate this topic in the year of the 70th anniversary of the fourth Geneva convention on the protection of civilian persons in time of war. This year also marks the 20th anniversary of the protection of civilians agenda at the UN Security Council, for which the UK is currently penholder.

The protection of civilians must be a priority, and the right hon. Lady set out many reasons why. Save the Children says at least 420 million children globally are now living in areas affected by conflict, which is more than ever. That has an impact across the board. Before coming here this morning I met an organisation that campaigns on education in the Lake Chad basin—an issue that particularly affects girls in that area of conflict—including in Nigeria and Cameroon. Children are a priority, as is education, and we must ensure that, where they are lacking, appropriate protections are put in place for civilians and children.

The right hon. Lady referred to the figure for RAF casualties, and the claim that there was only one civilian casualty after 4,000 munitions were dropped in the war against Isis. In future, we should perhaps require independent confirmation that there have been no civilian casualties, and use that as the basis. In circumstances where there is no independent confirmation for whether there have been civilian casualties, there must be a question mark over that issue. The RAF is effective and efficient and has tight safeguards over the use of munitions, but to suggest that there was only one civilian casualty after 4,000 attacks is challenging in terms of credibility.

We know that warfare is changing and that we are moving away from large-scale ground interventions. Airstrikes are becoming the primary means of achieving military objectives, and as we saw in Syria, they are increasingly used in urban areas. Drones are an added element of that. People attempt to portray drones as highly precise in their targeting, but there must be a question mark over that. We must ensure that issues of legality, transparency and accountability in the use of drones are monitored and built on. This is a developing area of military intervention, and the legal safeguards around drones must grow at the same time as their use.

We must focus on civilian protection during our own operations, but we must also consider the role that the UK increasingly plays when working with its partners—Saudi Arabia and the conflict in Yemen are often mentioned as an example of where UK personnel are not involved in directing attacks, but they are in command centres. The role the UK should play in civilian protection should be enhanced to cope with scenarios where the UK is an active partner in conflicts. Unfortunately, evidence is overwhelming that attacks have taken place in Yemen, from both sides, that are in breach of IHL. As parliamentarians, we should be worried that, while we have a role in expressing a view and voting on whether the UK should or should not take part in armed conflicts, we do not have one regarding whether the UK partners with countries that are in conflicts, such as that in Yemen. Perhaps we should look at whether we as parliamentarians should have an enhanced role when such partnerships are established.

It is not just when the UK is involved in a partnership that there are perhaps risks around whether we might be—either actively or at a distance—involved in matters that affect IHL. For example, the current US campaign in Yemen is separate from the conflict, but we must consider the use of drones. The same is true in places such as Pakistan and Somalia. The all-party group on drones set up an inquiry into the use of drones, and there are concerns about British involvement in US strikes in Yemen. It has been reported that there has been UK assistance with intelligence sharing, information triangulation and the tracking of informants, via the base in Yorkshire.

The German High Court recently found that at least some of the US drone strikes are unlawful and that Germany has an obligation to protect the Yemeni plaintiffs’ right to life. The German Government also have a legal obligation to establish a mechanism to ensure that any assistance to the US adheres to IHL. I therefore hope that, when the Minister responds to the debate, he will say whether the UK Government have looked at the German High Court ruling on the US strikes and at whether they need to develop a policy or position on that. Are the Government comfortable that we could not be in the same position, given our role in Yemen?

I have three precise asks for the Minister. First, will the Government assure Members that they have considered the German case and assessed its legal implications for the UK? Secondly, as part of the forthcoming UK protection of civilians strategy, will there be a clear mandate and commitment to the protection of civilians, and specific guidance on the use of explosive weapons in urban areas and in partnerships? Finally, through our position as a penholder on civil protection at the UN, we have a unique opportunity to lead a global recommitment to civilian protection in UN forums—I know that is something to which the Minister would wish to commit.

We have a crisis of great magnitude on our hands. When up to 85% of war casualties are civilians, it is clear that the laws of war—distinction, proportionality, necessity and precaution—are being disregarded on a large scale. The time to act is now.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

It is a pleasure to speak for the first time under your benign sway, Mr Bone. I congratulate the right hon. Member for Cynon Valley (Ann Clwyd) on securing the debate and on her wonderful speech. There are many issues that are before us today where there is a political division, but I submit that on humanitarian issues, the House of Commons ought to be absolutely united on what the ground rules are. Today gives us an opportunity to honour and thank those who so often put their lives in harm’s way when trying to help in the humanitarian space that we are discussing.

It is worth remembering that before the second world war, there was no specific international legal norm that aimed to protect civilians in conflicts. Philippe Sands’s outstanding book “East West Street”, which was published last year, sets out clearly the way in which history was changed after that. The horrors experienced by civilians all over the world during that war prompted the international community to adopt, in 1949, the fourth Geneva convention on the protection of civilian persons in time of war.

My submission is that today, 70 years on, our generation is facing its own crisis of civilian protection. Gareth Evans at the United Nations made great progress on the responsibility to protect—R2P—in the aftermath of the genocide in Rwanda and, indeed, events in Europe. My submission today is that the responsibility to protect remains an absolutely critical international doctrine, but that it is a skeleton, and there is far too little flesh on the bones of R2P and what it means to protect civilians.

Recently, in what was widely regarded as ethnic cleansing, we saw the appalling events that took place for the Rohingya in Rakhine state. The Minister, who we are glad to see in his place, has taken a leadership role in trying to protect the people caught up in that. Threats to civilians are worsening and becoming more complex, more urban and more protracted, but perhaps the major challenge facing civilian protection today is the rise in deliberate identity-based targeting of civilian populations, not as a by-product of war but as a distinct objective. Those crimes and atrocities are abhorrent in their own right, and they can also lead to the outbreak of armed conflicts. The eight-year crisis in Syria, for example, was propelled by the deliberate perpetration of atrocities by the state, leading to protracted armed conflict and a hellish cycle of intentional violence against civilian groups by different perpetrators.

Many hon. Members will have seen the work being done by Hamish de Bretton-Gordon, a distinguished former military officer. I had the opportunity to hear from him today, just after his return from the middle east where he advises the Idlib Health Directorate of the most up-to-date circumstances in Syria and particularly Idlib. He says this:

“Nearly 700 civilians killed this year and 500,000”

internally displaced people

“in Idlib many without homes living in the open and off scraps and evidence of another chemical attack. There have been 29 attacks on hospitals by Russian and Syrian aircraft with many now out of commission. A handful of hospitals and doctors are now trying to care for 3 million civilians…Because we have done nothing to prevent this atrocity the crimes against humanity of attacking hospitals and the use of chemical weapons, this will haunt us much longer than the Syrian conflict. People in Idlib, who I speak to on a regular basis, feel completely let down by the West—we might be prepared to act against Iran for attacking an oil tanker but nothing to help the humanitarian disaster in Idlib?!”

I submit that we should be seeking to name and shame the aircraft attacking those hospitals, and provide evidence to the International Criminal Court for future prosecutions. As the Minister knows, the Foreign and Commonwealth Office has sought to protect evidence of breaches of international humanitarian law in Syria. The advent of mobile phone technology means that we can collect evidence of the atrocities. In Khartoum, Sudan, mobile phone pictures have been taken of individual soldiers committing atrocities, breaking international humanitarian law. I hope that the Minister will be able to reassure us that in Syria, where there is a long-standing FCO operation, and in Khartoum, Sudan, we are collecting that evidence and we will make sure that it is used to bring international justice to those who have perpetrated those atrocities.

On that point, I remind the Minister that General Bashir, currently in jail in Khartoum, has been for many years the subject of an indictment through the International Criminal Court. We expect the British Government to do everything in their power to ensure that that warrant is executed.

[Tom Brake]

With regard to Syria, does the right hon. Gentleman agree that the UK Government should also be keeping records of the Russians involved, so that they too may be held to account?

[Mr Mitchell]

I absolutely agree with the right hon. Gentleman; he is quite right, and the Minister will have noticed what he said.

Of today’s major and emerging crises, the vast majority—Syria, Yemen, Libya, Myanmar, Sudan, the Democratic Republic of the Congo, Cameroon, Venezuela and Xinjiang—are driven, at least in part, by the deliberate violent targeting of civilian groups by political elites. Just as the decision was taken 70 years ago, in recognition that modern war was changing, to create a convention that aimed to protect civilians during the time of war, so we must admit today that more is needed.

Mr Bone, you will have heard the Queen’s wonderful words in her toast at the banquet for President Trump. She said this:

“After the shared sacrifices of the Second World War, Britain and the United States worked with other allies to build an assembly of international institutions, to ensure that the horrors of conflict would never be repeated. While the world has changed, we are forever mindful of the original purpose of these structures: nations working together to safeguard a hard won peace.”

It is incredibly important to support international structures, particularly the UN—I draw the Minister’s attention to the comments in the House yesterday on the urgent question on Iran—and to use international bodies that were built up in the aftermath of the second world war.

The Government’s ongoing review of the UK’s protection of civilians strategy provides a welcome opportunity to ensure that British policy is fit for the challenges of modern conflict. It is, as the Minister will appreciate, an opportunity to ensure that any new strategy is in line with the substantial progress made in related areas since the previous strategy was published by the coalition Government in 2010 and last reviewed in 2012—namely, the UK’s growing commitment to the prevention of mass atrocities.

--- Later in debate ---

[Mark Field]

Sorry—West Dunbartonshire. The hon. Gentleman might well become the leader of the Liberal Democrat party if I am not careful.

[Tom Brake]

Nominations are closed.

[Martin Docherty-Hughes]

I think I’ll pass.

--- Later in debate ---

[Mark Field]

I wish I had homework that I could mark these days—it is more my children’s homework that I have to do that with now. My right hon. Friend makes a valid point. Above all, the issue is less to do with whether that is desirable, and more about the credibility in the international community of such outcomes. He makes a fair point.

To return to the point made by the right hon. Member for Cynon Valley, the operational end-use monitoring and the establishment of a dedicated civilian casualty mitigation and investigation team are an MOD lead. I will ensure that her speech is passed to my friends over in that Department, although I am sure they are well aware of the concerns raised here today. The issue relates to operations in the field and is therefore an MOD matter. From our side, we are trying to improve data collection, as I referred to, in other parts of the world. We feel that that may have an important part of play. There is project underway with the University of Manchester looking at many of these related issues, and I hope the right hon. Lady will be able to feed into that.

The hon. Member for East Londonderry (Mr Campbell), who is no longer in his place, made a point about child soldiers. The UK is firmly committed to ending the recruitment and use of child soldiers and to the protection of all children affected by armed conflict. We are an active member of the United Nations Security Council working group on children and armed conflict. I believe it will be an important part of the Indonesian presidency next year that they want to address this terrible issue.

My hon. Friend the Member for Henley talked about Africa, and I have discussed the Security Council issues a little. Uganda, Senegal and Ghana—I am not sure they are all on his hit list, and I have put them in reverse alphabetical order—are working with the US and other countries, looking at positive reform of the International Criminal Court. We would obviously like to see more activity in Africa, given the prevalence of concerns that have arisen from that part of the world, as my hon. Friend rightly pointed out.

The right hon. Member for Carshalton and Wallington made an important point about drones, their legality and the implications of the German High Court ruling. The MOD leads on this, but we will look closely at that German High Court ruling. Upholding IHL is already integral to any assistance that we would provide to other states. This matter is under review at the moment through the MOD.

[Tom Brake]

On that point, I and other Members here today would like something in writing from the Minister, once those discussions have been completed.

[Mark Field]

I am happy to undertake to do that.

I want to talk about the challenges that our UN peacekeepers face. In today’s modern conflicts, missions are facing increasing asymmetric and physical threats, and they can be targets themselves. The importance of finding political solutions remains paramount. We are committed to improvements in peacekeeping. We will continue to call for support to improve the three Ps of peacekeeping—planning, pledges and performance—as we, along with 63 nations, set out in a communiqué at the 2016 UN peacekeeping Defence ministerial meeting in London.

I realise that time is getting tight, and if there are matters that I have not been able to bring up, I will respond in writing. I will make sure my team looks through the Hansard transcript.

A key approach is that there should be no impunity. Primary responsibility for investigation and prosecution of the most serious international crimes rests with states themselves, but where those states are unable or unwilling to fulfil their responsibilities, other justice mechanisms, such as the International Criminal Court, have an important role to play. The UK remains one of the foremost contributors to the ICC, and we will work to ensure that the court undergoes the necessary reforms to enable it to fulfil its mandate as the court of last resort, as intended under the Rome statute. We have been strong advocates of ad hoc and hybrid international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and its successor, as well as the Special Tribunal for Lebanon and the Residual Special Court for Sierra Leone.

UN peacekeeping is an important aspect of the protection of civilians, and we will continue to work with the international community on it. In addition to our international efforts, we are working domestically to ensure that we are doing all we can to uphold IHL in the interests of protecting civilians. We have established a centre of excellence for human security, which will deliver extended training on the protection of civilians; women, peace and security; human trafficking and sexual exploitation; and cultural property protection. Ours is the first military in the world to have a dedicated national defence policy on human security. The centre will help other militaries. We have also had a safe schools declaration, to support the continuation of education during armed conflict, and the publication of our “Voluntary Report on the Implementation of International Humanitarian Law at Domestic Level”.

Mr Bone, I appreciate that you want to ensure that the right hon. Member for Cynon Valley has a moment to speak at the end of the debate, but, if I may, I want to conclude by saying that our support, recognised, I think, by everyone in the House, for the principles, rules and instruments of international humanitarian law remains unwavering. The robust framework is designed with the protection of civilians in mind. We take our responsibilities seriously, and I am glad that the House feels as strongly as we do. The review is under way, and I am convinced it will be a great success, not least because it will have input from Members here and from a range of bodies with these interests at heart. I hope we can discuss these matters again in the House before too long.