INTERNATIONAL CRIMINAL COURT BILL – 3 April 2001
Dr Julian Lewis: It is a great pleasure to follow the hon. Member for Bethnal Green and Bow (Oona King). I well remember the excellent Adjournment debate that she introduced in October 1999, when I had the pleasure of participating and endorsing most of what she said. Contrary to what some people might think, there is much consensus on the issue across the Floor.
The war crimes aspect causes most concern, where it shades into the conduct of military activity in future conflicts and the way in which military personnel might be held to account. However, I want to leave that point until the end of my remarks and concentrate on the aspects of genocide and crimes against humanity, for which there are at least six good reasons why one needs an International Criminal Court – if satisfactory procedures for operating it can be agreed. The first reason is to punish past killers; the second is to deter future killers; the third is to embarrass those who shelter killers; the fourth is to force countries to put the killers in their midst on trial; the fifth is to prove beyond doubt that the killings actually took place; and the sixth is to bring out aspects of the truth that might otherwise remain hidden.
I shall deal briefly with those reasons in turn – beginning with punishment. I make no bones about the fact that I believe in the virtue of retribution for its own sake. That is an unfashionable statement, but if the concept of punishment or retribution means anything at all in the 21st century, it should certainly apply to the crimes we are talking about – genocide and crimes against humanity. Those are crimes whereby whole swathes of people are eliminated on a group basis. People who have done nothing whatever to incur the hatred, disdain or dislike of the people who attack them are nevertheless liquidated without semblance of pity or mercy. Even if it would not deter one future criminal from the acts committed by mass murderers in the past, every mass murderer whom it is in our power to punish should be punished because it is a matter of natural justice; the blood of the victims cries out for punishment to be carried out.
I shall briefly refer to three examples. I hope that the House will forgive me if I go back to the period about which I know most – the Second World War. The first example is Josef Mengele, the angel of death of Auschwitz, who, we now know, died in Brazil. We also know that he was so confident of not being punished that for many years he lived openly under his own name and his family in Germany were in communication with him. That tells us that if the authorities in Germany had had a real will to track down Mengele and bring him to justice, they could easily have done so. It is not for me to speculate why they did not.
The second example is Walter Rauff, the man who invented mobile gas vans. They sometimes had a red cross on the side, but Jews were herded into them and exhaust gases were automatically funnelled into the back so that as the van drove off they were asphyxiated in the most excruciating manner. There are fascinating documents in the archives about the care and attention with which German firms that are still trading today designed those devilish contraptions – to make sure that the "waste materials" and other substances derived from the "process" would not impede the operation of the van. Walter Rauff also lived openly in south America for many years, even being interviewed by magazines, but he was never brought to justice. I like to think that, for all the reasons that I enumerated, an International Criminal Court would have made it much more difficult for him to escape the fate that he richly deserved.
The third case is one that I mentioned briefly in an intervention on the Foreign Secretary – that of Alois Brunner, Adolf Eichmann's right-hand man, who was personally responsible for organising the death of more than 40,000 Austrian civilians, more than 40,000 Greek civilians, more than 20,000 French civilians and many Slovaks. He was known, at least by the 1980s, to be living in Syria under the name of Georg Fischer, as an honoured guest of, and an adviser to, the Syrian Government. I have raised the matter in the House on at least half a dozen occasions, in July 1998, July and October 1999 and in March and June 2000.
On 20 June 2000 I thought that I was making progress. I asked the then Minister of State at the Foreign and Commonwealth Office, the hon. Member for Neath (Peter Hain), whether one contribution towards the building of trust between Syria and Israel would be for the new Syrian regime to clear up the mystery of its long-term sheltering in Damascus of the architect of the holocaust in wartime France and elsewhere, Alois Brunner. I asked whether the Government would make representations to the Syrian regime indicating that it could not expect to be taken seriously in the search for peace as long as a war criminal of that magnitude was sheltered.
The Minister replied that he would look into the matter and write to me. Eventually, he wrote to me in August of that year, and I was much encouraged by what he wrote because there had been a change of regime in Syria. He said that, with the passing of President Hafez al-Assad, more information "might become available" about Brunner. He said also that it might be possible for the Government to make representations once the new leadership in Syria had "settled in".
It was with some confidence, therefore, that I asked another question on 27 February this year. I asked what representations had been made to the Syrian regime about the sheltering of that dreadful man, only to be told by the present Minister of State, the hon. Member for Leicester, East (Keith Vaz):
"We have not made representations to the Syrian Government about Alois Brunner. There is general agreement that he is almost certainly dead. Inquiries in recent years by the French and German Governments and by journalists have failed to produce evidence of his whereabouts." [Official Report, 27 February 2001; Vol. 364, c. 584W.]
We heard the Foreign Secretary say this afternoon that if I had fresh evidence, he might consider making representations.
My question in February was timely because, at the beginning of March, a French court thought enough of the possibility that Brunner was still alive and being sheltered in Syria to sentence him, in absentia, to life imprisonment. If the French Government can organise a trial to sentence a missing murderer to life imprisonment, I am disappointed – to put it mildly – that our own Foreign Office seems to have set its face against doing anything, even at the modest level of making representations to the new Syrian Government, especially when the former Minister of State suggested that he was minded to do so.
Perhaps the background is that some professional diplomats in the Foreign Office think that it is not such a good idea to stir up feelings that might upset our relationship with the new Syrian Government, by pursuing that terrible criminal. Even if he is dead – he would only be 88, and plenty of people of that age are still going strong today, including my father – it is important that the record is set straight if Syria, under its new regime, is to be taken seriously in the comity of international society.
David Winnick: The hon. Gentleman is right about Brunner, and we know Brunner's record. However, is he aware that I initiated a debate in the late 1980s about a notorious Nazi war criminal, who was responsible for murder by exhaust fumes before the gas chambers existed? That mass murderer was living in Chile under his own name. In replying to that debate on behalf of the then Government, Malcolm Rifkind made it clear that, although he was obviously concerned, he would make no representations. So the hon. Gentleman is saying nothing unique; I am afraid that successive British Governments have taken that line.
Dr Lewis: I thank the hon. Gentleman sincerely for making that point. I hope that he acknowledges that in no sense am I trying to be party political. I strongly suggest that, in both those cases, the Government of the day received official diplomatic advice on what was, or was not, a wise course to follow. The hon. Gentleman may have been out of the Chamber when I referred to Walter Rauff, whom I assume is the criminal that he mentions, and I entirely endorse the sentiments that he expresses.
People such as Rauff, Mengele and Brunner deserve punishment in their own right; it is fit and meet that they should be punished, but there are many more positive reasons to support the principle of the International Criminal Court. For example, it will deter people in future now that Milosevic has been taken into custody, although not yet for trial in that court, it is true. Nevertheless, the principle is illustrated that a head of state who wants to wage aggressive and barbaric campaigns against civilians can no longer shelter behind the idea that, whoever else carries the can for the orders that he gives, he will be immune.
The ICC will embarrass countries into taking action that they otherwise would not take. That point has been sufficiently illustrated already. For example, would the Latin American countries have harboured so many terrible Nazi criminals for so long if a court had been available to put pressure on them to give up those criminals? Would so many Nazis have been aided by countries and organisations, and even some parts of the Catholic Church, to escape the retribution that they so richly deserved?
Would members of the SS Galicien division have been allowed into Britain, or having been allowed to enter – perhaps relatively innocently, although I find that hard to credit – would it have been allowed to settle here when questions were being asked about the wartime conduct of so many of its members? As a Labour Member said previously, would Idi Amin have found it so easy to continue to have sanctuary in Saudi Arabia?
The fourth reason that I mentioned was to force other countries to try criminals in their midst. Once again, the recent arrest of Milosevic shows the benefit of that.
I should like to spend a moment on the fifth reason, which is to prove that killings actually took place. We know only too well the evil of historical revisionism and of the activities of the holocaust review organisations and of propagandists such as David Irving, Ernst Zundel in Canada and Fred Leuchter in America – who purported to produce a "scientific" report that the gas chambers had not really been gas chambers at all.
I was deeply impressed by the foresight of the late Lord Bernstein and the late Alfred Hitchcock. When the death camps were opened at the end of world war two, they anticipated that the horror was on such a scale that future generations might fail to believe that it had ever occurred, so they produced the unforgettable film "A Painful Reminder". They visited the camps before the bodies were all buried and they took, with the widest-angled shots possible, a comprehensive cinematographic record of what was found, so that it would become as difficult as possible to deny that the atrocities had taken place.
The final reason is to bring out aspects of the truth other than the fact that killings had taken place. I was reminded of that by an article in The Times today under the heading "I funded Bosnian war, says Milosevic". It reports that he
"had conceded for the first time that he had covertly funded the Bosnian and Croatian Serb armies".
When he was asked to account for all the money that had disappeared, he said that
"the details should be kept a state secret, since the money went to finance Serb rebellions against the secession from Yugoslavia of Croatia and Bosnia, as well as to Serbian security troops and 'anti-terrorist forces'.
"The funds, not included in official budget figures, were designed to circumvent the international embargo against Yugoslavia,"
When we consider the period when our Foreign Office believed that Milosevic was acting as a brake on the activities of Karadzic, how extraordinarily useful it is to learn that those of us who suspected all along that Milosevic was fomenting and supporting such activities were correct.
Even before I deal with the issue of war crimes, there are some other problems with the concept of the court. Those problems have been alluded to and I shall run through them in short order. The first is the concept of "victor's justice". That term has been applied to the Nuremberg tribunals, but no one would deny that the 20 volumes of detailed evidence of Nazi crimes that was gathered at Nuremberg are anything other than an historical source of the first significance. The record of the Nuremberg tribunals makes it extremely difficult to deny the nature of the Nazi regime – and, after a gap of 50 or more years, there would be no shortage of people who would try to do that if they thought that the evidence was not against them.
There is also the argument about the "clean hands" of those sitting on the tribunals. It is true, for example, that Stalin had a judge sitting at Nuremberg. However, just because we cannot bring everyone to justice, that does not mean that we should not bring to justice those people who are capable of being put on trial.
Perhaps a more serious objection relates to the issue of enforcement. Some criminals are too strong to be brought to trial. However, the idea is at least put in the back of their minds that, if one day in future they lose power, they may then be pursued and be held accountable for their actions. The court is still worthwhile from that point of view.
Problems of access, such as to the atrocities in Afghanistan and Chechnya, have been touched upon, but who would have thought that the time would ever have come when dictators such as Todor Zhivkov in Bulgaria or Erich Honecker in East Germany might have had to face the consequences of their disgraceful activities? That time did come and the court will make it more probable that it will come for other people.
There is little disagreement about the court in respect of the issues of civilian atrocities, genocide and crimes against humanity. The real concern applies to whether normal military action or honest mistakes made during normal military action could end up being defined as war crimes. I sympathise with the doubts expressed by my hon. Friends on the Back Benches. We only have to consider the way in which some recent legislation abuses the concept of human rights to realise that people fear that the definition of a war crime could be stretched too far and thus undermine the principles that the court is being established to support.
Nick Hawkins: My hon. Friend touches on an important matter. Does he agree that members of all political parties in this House and in the other place often express amazement at the frequency with which the decisions of successive British Governments are challenged in the European Court of Human Rights? Does he also agree that, despite the best intentions, there is a great danger that something that we would regard as legitimate might be ascribed by a rogue state, which is nevertheless a nominal signatory to the new statute, as a war crime and could result in lawful actions by our armed forces being brought before the new court?
Dr Lewis: That is precisely my point, although my hon. Friend puts it more succinctly. I hope that Labour Members can tell from the sincerity of my positive approach to the Bill that my reservation is also sincere. My hon. Friend articulates my concern well.
It is often said that the road to hell is paved with good intentions. There is also a danger that the devil makes work for idle hands. The argument is finely balanced. There are advantages to a standing court: for example, it helps to avoid disputes over whether trials are held retrospectively, which is one of the criticisms of Nuremberg. The disadvantage is that people might be tempted to run to a standing court with complaints that would not be entertained if it meant establishing an ad hoc court to consider a specific problem. I am inclined to think that the balance is in favour of a standing court.
On military action and warfare, there is a long and sad history of attempts to outlaw aspects of war by international law. The Washington Naval Treaty and the Geneva Gas Protocol of the 1920s were subsequently flouted. It was deterrence that prevented gas from being used by the combatants in the Second World War. The experiences of the Jewish people who fell under Nazi control – including my relatives and those of the hon. Member for Bethnal Green and Bow (Oona King) – prove that it was used against the helpless. Similarly, in 1939, at the outset of the Second World War, our bombers were instructed not to bomb land targets for fear of collateral civilian casualties. They bombed ships only at sea. In a real war, such restrictions soon go out of the window. My right hon. and learned Friend the Member for North-East Bedfordshire (Sir Nicholas Lyell) has ably made the point that the principle of nuclear deterrence could be challenged.
I have a final question, to which I would appreciate a response. What happens if the United Kingdom tries and acquits a member of our armed forces who has been accused of a war crime? Is that the end of the matter, or can the ICC decide that it is not satisfied with the verdict and that it will intervene?
My hon. Friend the Member for Reigate (Crispin Blunt) drew my attention to article 17 of the Rome statute, which states:
"the Court shall determine that a case is inadmissible where:
"(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;"
"(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute".
I do not need to point out that the insertion of the word "genuinely" into both paragraphs begs many questions. Conservative Members do not want killers to escape justice, or people who commit crimes against humanity to laugh in the face of world opinion, as they have done in the past. However, in our pursuit of thoroughly admirable aims, we do not wish innocent servicemen to be brought before an international court simply because the processes in our democratic society, whereby they have been found not guilty, are deemed insufficient by that court.