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Genocide Determination Bill [HL]

My Lords, I thank all noble Lords who have contributed to today’s important debate. I am grateful even to those who have disagreed with the principle, the practicalities or the specifics of the Bill, because I think I heard from the noble Lords, Lord Wolfson and Lord Katz, from their respective Front Benches, their willingness to go on discussing this. That is why I hope that the Bill will be given a Second Reading today and that it will go on to Committee, so that we can have those discussions. I also had a note from the noble Lord, Lord Purvis of Tweed, who would very much like to have taken part in today’s debate, and I thank those noble Lords on his Benches who have indicated their support for the Bill.

To noble Lords who have spoken against or who have entered reservations, I say straightaway that I am very willing to go on discussing those. As a preliminary, I say to the noble Lord, Lord Wolfson, that I am very happy to take the blame for his becoming involved in politics during his schooldays in Liverpool and I thank him for the contribution that he made today, and for the discussions that we have had outside the House about the Bill. Yes, there is a gap; he is right about that. I am perfectly content to accept that there may be various ways of filling it and I accept the point that has been made across the House that this would be only one contribution to the filling of that gap, but we are right to be having that debate.

I agree with the noble Lord that we do not want lawfare or vexatious cases. Where I do not agree with him is on the question: would our courts be capable of examining this? I have a particular regard for the noble Lord, Lord Wolfson, because he comes from the best traditions of our judiciary and our legal profession in this country. My noble and learned friend Lord Hope of Craighead, for whom I have particular regard—he helped in the framing of this Bill and has given me encouragement in pursuing it—believes that the Court of Session in Scotland or the High Court of England and Wales would be perfectly competent to deal with this question.

As for the noble and learned Lord’s reference to Article I in the Bill, he was right to gently remind us there is an Article II, and therefore a gatekeeper. This would not lead to every vexatious claim appearing before our courts and we could be quite discriminating in those we accept and those we do not. There would be a political contribution to that, but for me this is not a political issue, which really goes to something that the noble and learned Lord, Lord Garnier, said to the House in his speech earlier. He said that genocide is a political question and, in that, I for once disagree with him. It is a legal question, as this Government and previous Governments have said on many occasions.

The noble Baroness, Lady Sugg, reminded us that the Government have always said that this is a matter for the courts to determine. Genocide is an international crime. It has a legal definition and therefore requires a

legal assessment. The regimes in China, Myanmar and many more may disregard the determination by British courts but, as emphasised by my friend the noble Lord, Lord Wills, and the noble Baroness, Lady Kennedy of The Shaws, the international rules-based order requires us to take an approach that is principled and not overshadowed by political considerations, something which—too often, I fear—has been the case.

I thank the noble Lord, Lord Katz, and the noble Baroness, Lady Chapman, who cannot be here today, for the meeting they had with my friend, the noble Baroness, Lady Kennedy, and me where we discussed a number of these issues. I will not go over all the arguments, but I will mention two points the noble Lord made. He rightly referred to the many contributions that mentioned Sudan. Twenty years ago, after I visited Sudan—where 200,000 to 300,000 people died and 2 million were displaced—the International Criminal Court, in a remarkable decision, arraigned the Head of State, Omar al-Bashir, and said he had committed the crime of genocide. The fact that he still walks the earth, never having been brought to justice for any of those crimes, is surely proof positive as to why we need to do something more than simply rely on the courts.

I agree with my noble friend Lady Deech about the International Criminal Court itself and the ICJ, and why we need to look again at how they operate. The French said some years ago that we need to look at the veto—a point I raised with the noble Lord, Lord Katz, yesterday. The veto can, has always been and always is used. Take China, for example: it is not going to allow an investigation into the genocide referred to by the noble and learned Lord, Lord Garnier—“genocide” is the word the House of Commons decided to use to describe what has happened to Uyghur Muslims in Xinjiang. In response to a veto always being used, the French suggested that maybe we should at least exclude from the right to veto the determination of acts of genocide or other crimes against humanity. I think there is scope there.

The noble Baroness, Lady Kennedy, raised the point yesterday that we need further discussion around the definition of “crimes against humanity”. That was an unsettled point when Lemkin gave us the genocide convention, and there is still a serious discussion taking place on what to do about that. I hope we will go on having those discussions.

The noble Lord said that it is better to do things in the locality, but look at what happened in northern Iraq and northern Syria. The British Government collected the evidence. The last Government did a terrific job of collecting evidence, which is stored in New York, and no one is doing anything about it. One reason for that is that the local courts in Iraq would use the death penalty, so we are understandably very hesitant in saying they should bring these cases to justice. We need to have a rather deeper think about some of those questions.

To the noble and learned Lord, Lord Garnier, I want to say that someone I have enormous regard for is Sir Geoffrey Nice KC, who was the prosecutor of Milošević. We heard an amazing contribution from the noble Baroness, Lady Helic, today, reminding us of the horrors in Yugoslavia. Sir Geoffery Nice chaired

an independent tribunal, the equivalent, in many ways, of a court in this country. It had jurors who listened to the evidence, and he found that in four instances there was no genocide, but in a fifth there was. He therefore declared there to be a genocide. It was based on that finding that the House of Commons took its decision. Therefore, the idea that we would not be competent, capable or right to do such a thing through our courts is not something on which I can agree with the noble and learned Lord.

I cannot, and should not, take all the time that might now be left, but Mr Justice Kirby, a brilliant Australian jurist, was asked by the United Nations to chair a commission of inquiry into human rights in North Korea. He found that there had been crimes against humanity. He said it was a “state without parallel” and should be taken to the International Criminal Court. Guess what—it never has been, and the United Kingdom, to its shame, has never asked the Security Council even to consider the request of a commission that was established by the United Nations and found conclusively that there are crimes against humanity. I disagree with the idea that no one takes any notice of these things, because we heard evidence recently from a man called Thae Yong-ho, the number two in the North Korean embassy in London. He defected and told me that the reason he left was that he had often come to Parliament and was so taken by our beliefs, our system of democracy and our rule of law. He said that when the commission of inquiry made the decision that they could be arraigned for crimes against humanity, a frisson of fear spread through the upper echelons of the regime in North Korea. The relief, he said, was palpable when it was decided that nothing was going to be done about it.

That is the challenge to us: to do something about it. The right reverend Prelate the Bishop of Newcastle said that this is an opportunity to strengthen law. My friend, the noble Baroness, Lady Sugg, a former Minister, said that we cannot go on repeating the same mantra about a competent court when there is not one to do it. My noble friend Lady D’Souza said that this is a focused Bill that is urgently needed. The noble Baroness, Lady Kennedy, said that there should not be exceptions, whether they are our friends or foes, and I agree with her. She pointed to the German precedent of a court able to determine a genocide—not against a German citizen, but someone who committed genocide against Yazidis. The noble Lord, Lord Griffiths of Burry Port, pointed to Clause 3 and the failures of international institutions. The noble Baroness, Lady Uddin, asked what is the point of recognition without consequences, and I agree with her.

The Bill empowers victims and courts, and disempowers political activists who, in many cases, have no intention of doing anything, because so often they follow the money rather than the morality. The noble Baroness, Lady Hodgson, who is a good friend on so many things, the noble Baroness, Lady Sanderson, and others referred to Afghanistan. They go and put their hands into the wounds, as did the noble Baroness, Lady Kennedy. They are not unaffected or left unchallenged, and nor should any of us be. These are real stories about real people, about whom we have duty to do something.

The noble Baroness, Lady Goudie, emphasised this through her work with Georgetown. My friend, the noble Lord, Lord Cashman, talked about human carnage and the danger of silence and appeasement.

I finish with words about silence and appeasement. A great hero of mine, Dietrich Bonhoeffer, spoke out against the horrors of Nazism. He was one of the few who did; too many collaborated or were indifferent. That great Protestant theologian said:

“Not to speak is to speak. Not to act is to act”.

This may not be a perfect Bill, but it gives us an opportunity to act. In that spirit, I commend it to the House and I beg to move.