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My Lords, on this politically auspicious day, as we mark the appointment of Andy Burnham Member of Parliament as the new leader of the Labour Party, we know that we have a parliamentarian who is passionately committed to the principle of public accountability and justice. It is serendipitous, perhaps providential, that a Bill which seeks to entrench both accountability and justice for genocide—the crime above all crimes—should receive its Second Reading in this House today, and I thank all noble Lords from all Benches who are participating.
Today is also International Criminal Justice Day, which marks the anniversary of the adoption of the Rome statute on 17 July 1998—the founding treaty of the International Criminal Court, which seeks to protect people from genocide, crimes against humanity, war crimes and the crime of aggression. What better day, then, to have the Second Reading of the Genocide Determination Bill, which manifests all these values and commitments to victims and survivors, to justice and peace? Noble Lords should be clear that the Bill is not actor or territory specific; it is about the crime above all crimes and our willingness to make a reality of the intentions of the 1948 convention on the crime of genocide.
Only a few weeks ago, with the noble Baroness, Lady Kennedy of The Shaws, we had a constructive and helpful meeting with the Attorney-General, the noble and learned Lord, Lord Hermer, and he told us that genocide is the “apex crime”. There is no surprise there.
Over the years, whether in this House or the other place, I have raised the appalling genocides, crimes against humanity, that have occurred in too many parts of the world. As a young MP in the House of Commons, I raised the appalling genocide of Pol Pot against the Cambodians, and subsequently the atrocities in Darfur, western China, Burma, northern Iraq and elsewhere, all of which are documented in a book which I published with Dr Ewelina Ochab of the International Bar Association and the Coalition for Genocide Response, of which I am a patron. A few weeks ago, I also raised the dire situation of women and girls in Gaza.
There is no shortage of suffering globally. We need, however, to be very careful about the words we use, how we use them and the actions which must follow. So why does the noble and learned Lord, Lord Hermer, describe it as the “apex crime” and why is our response to this crime above all others so inadequate? The word “genocide”, of course, was coined by the Jewish lawyer Raphael Lemkin, over 40 of whose family had perished in the Holocaust. It is a hybrid word combining the ancient Greek word “genos”, meaning race or tribe or family, and the Latin suffix “cide”, meaning killing. It is a specific word with a specific meaning and is not to be used as a slogan. Genocide is an identity-based crime and describes the systematic destruction of a national, ethnic, racial or religious group. It is the cutting of the human family.
We have heard it being used for situations globally, but genocide has a strict legal definition, and we always need to go back to it. Genocide and the 1948 convention which bears its name require us to show not only the underlying and prohibited acts, and I spell them out, of killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part, imposing measures intended to prevent births within the group or forcibly transferring children of the group to another group. To become genocide, these acts must be directed against one of the protected groups, whether racial, national, ethnic or religious, and this with specific intent to destroy the group, in whole or in part. Lemkin’s definition of genocide, as contained in Article II of the convention, was meant to establish genocide as what the noble and learned Lord, Lord Hermer, called the “apex crime”, the crime above all crimes, with the hope that, after the Holocaust, we would never witness anything of that sort again.
However, defining genocide did not stop such atrocities being perpetrated. More importantly, the convention is not only about defining what genocide is; it imposes duties on the signatories, of which we are one. Let us disassemble, if we may, the neglected duties. There is prevention. While not explicitly explained in the convention, it was later expanded and explained by the International Court of Justice. It is a duty to prevent and—I spell out its words—for states
“to employ all means reasonably available to them, so as to prevent genocide so far as possible”.
The trigger for this duty is when the state learns or should normally have learned of the serious risk of genocide.
As for protection, consider the plight of women and girls in Sudan, the world’s worst humanitarian catastrophe. In a report I published for the All-Party Parliamentary Group on Sudan in April 2023, we specifically warned of the danger of a new genocide in Darfur. Of course, that has happened in El Fasher. We did not act on the warnings and the requirement to protect—not in relation to that genocide and not in relation to the genocide two decades ago. In Darfur, the first ever arrest warrant was issued by the ICC, but 200,000 to 300,000 lives were claimed, 2 million people were displaced and the warnings had fallen, then and again 20 years later, on deaf ears. There are no blue helmets and no protection for the civilian population. It is as if, in the grand scheme of things, these African lives do not matter.
As for punishing perpetrators, we are equally deficient. Let us be crystal clear: the impunity for the genocide two decades ago in Darfur has a direct link with the genocide that is being perpetrated before our very eyes now. So duties to predict, prevent, protect and punish at the moment are not worth the paper on which they are written.
I first introduced the Genocide Determination Bill only a few months after I laid amendments here and with colleagues in another place following a unanimous vote that had determined that the atrocities committed by ISIS against Yazidis, Christians and other minorities in northern Iraq and Syria was a genocide. It was the first time that the House of Commons had made such a determination. But, despite the calls from across the political spectrum for genocide determination and action to stop those atrocities, to prevent further atrocities, to protect the populations at risk and to avert the risk that the communities would be annihilated, the Foreign Office refused to accept the determination made in another place, arguing that such a determination could be made only by an international judicial body or a competent court, despite knowing only too well that there was no international judicial body that was going to look into those crimes committed by ISIS in Syria or Iraq. The Government also made it clear that they were not willing to move on that position.
That made me consider what would need to happen to implement the Government’s declared policy that only a court can decide and how we could create a route into our own courts to make that happen. If indeed the Government wanted court determination, my question was: could our domestic courts make such a determination? As it stood at the time, the only legislation pertaining to genocide was the International Criminal Court Act 2001, legislating and domesticating the Rome statute of the ICC. It enables our court to prosecute individuals for their involvement in international crimes such as genocide, but it equips domestic courts with only very narrow jurisdiction over international crimes: namely, active personality jurisdiction, which means that the alleged perpetrators must be British citizens or residents to fall within the purview of the legislation.
In the case of the Yazidis, it is very significant that the Foreign Office has changed its position and has said that a genocide is under way, and has done so because a court in Germany has declared it to be a genocide. While I welcome that, why is it that we are closing off a route to our own English High Court and to the Court of Session in Scotland: courts that would be more than competent to deal with this matter here? It was my noble and learned friend Lord Hope of Craighead who said that the 1948 convention was no longer fit for purpose—his words. He gave us his valuable expertise and help in drafting the original Bill, and I have talked this Bill through with him. I hope we will not hear from the Government that this is not practical or doable when such an illustrious Member of your Lordships’ House is one of the many who have given it support.
Instead of the cynical merry-go-round that we have at the moment, we need to establish an independent British judicial process to sift the evidence and make a preliminary finding triggering the provisions of the convention. If this is the apex crime, genocide has a high burden of proof, and rightly so. It is not a term to be thrown around lightly or to be misused. My Bill seeks to give force to the hopes of Raphael Lemkin and of Winston Churchill, who said that there was not a word in our language capable of describing the monstrosities which had occurred in the Holocaust. There were genuine attempts in the post-war period to address those questions. We need to return to those issues now and do something practical about it. I commend this Bill, which enjoys all-party support, to the House, and I beg to move.