Geneva Conventions and United Nations Personnel (Protocols) Bill [ Lords]

Part of Registration of Births and Deaths (Welsh Language) – in the House of Commons at 1:11 pm on 1st April 2009.

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Photo of David Lidington David Lidington Shadow Minister (Foreign and Commonwealth Affairs) 1:11 pm, 1st April 2009

That is a complication, but it is a necessary one. The more I delve into the politics of the middle east, the more I find the need for unavoidable complications. One's wish that the world were simpler is very often defeated when looking at that region.

My second question to the Minister about the red crystal concerns its relationship with the red cross and the red crescent. I heard her say that the intention was that the crystal should not displace those traditional symbols, and I know, too, that in terms of indicative domestic use it will be a matter not for the Government, but for the British Red Cross to decide how to use the symbols in this country. However, I want to put on the record my strong hope that it will not use the opportunity provided by the inclusion of the red crystal in the list of protective symbols to go down the route of saying, "Let's have that instead of the red cross."

The British Red Cross and the International Committee of the Red Cross do a first class job. However, the one thing that I find niggling about the British Red Cross from time to time is its neuralgia about even the slightest reference to religion—right down to banning Christmas cribs from the windows of its charity shops. That is unnecessary; I do not think for a moment that such displays bring its impartiality into question. I hope that it will stick to a tried and trusted symbol that the overwhelming majority of the British public respect and value, regardless of their ethnic and religious traditions. The symbol is also regarded with great pride by the army of volunteers and fundraisers who have participated in the work of the British Red Cross for so many years.

My final comment about this element of the Bill takes me to the point raised by my right hon. Friend Mr. Knight about the Human Rights Act 1998. As I understand it, the Bill prohibits the use of the red crystal for any business or commercial purpose. I would like an assurance from the Government that they truly did their homework on that issue before bringing the Bill to the House. Can the Minister say in terms that the Government have checked that they will not be knowingly extinguishing the patent rights of any individual or company, and that the Bill will not suddenly cripple the trade of some small business that has been innocently using the red crystal as a marketing device or a symbol of its corporate image for many years, only to find itself overtaken by this legislation?

Clause 2 deals with the optional protocol to the convention on the safety of United Nations and associated personnel. In terms of British law, we are talking about an amendment of the United Nations Personnel Act 1997. The amendment is designed to address the fact that the protection given by the current convention is fairly narrow. However, articles 1 and 2 of the original convention show that the definition of a United Nations operation is tightly drafted. To qualify for the protection of personnel, the operation has to be

"for the purpose of maintaining or restoring international peace and security; or...Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation".

Clearly, that phraseology rules United Nations humanitarian assistance and relief operations outwith the scope of the original convention. Although it could be argued that there is a safeguard in the reference to the power that the Security Council and General Assembly have to declare that there is an exceptional risk to the personnel participating in the operation, I believe that there have been only about four occasions since the convention came into force when that saving clause has been applied in practice.

Everyone is clear and agrees that there are plenty of United Nations operations that do not qualify for protection but ought to. I gladly join the tribute paid by the Minister to the courage of military personnel and civilian workers who work under the United Nations banner in the most difficult circumstances, trying to bring aid and humanitarian relief to people in desperate straits and often in the midst of the most savage conflicts in different parts of the world.

The Bill is extraterritorial in scope; it creates offences in the United Kingdom in respect of offences committed elsewhere in the world. Section 1 of the United Nations Personnel Act 1997 defines the offences as ones committed outside the United Kingdom. One detail that troubles me is that the Bill does not seek to amend the list of criminal offences included in sections 1 and 2 of the 1997 Act. I am sure that the Minister knows only too well that since 1997 there has been a long series of criminal justice Acts. We have seen the creation of a long list of new offences and the redefinition of others. I am therefore genuinely puzzled about why the Bill does not seek to amend the list of offences in sections 1 and 2 of the 1997 Act, to bring that Act up to date. New terrorism offences have been created and I would have thought that they would apply to the Bill, especially as the terrorism legislation brought in by the Government specifically includes offences committed overseas and not just those committed here. Why has there been no amendment to the original list of offences in the 1997 legislation?

My second area of questioning is about the definition of United Nations operations. The Bill amends the definition of a UN operation to add in the category of

"delivering humanitarian, political or development assistance in peacebuilding and delivering...humanitarian assistance."

We deserve more detail from the Government about what is meant by "peacebuilding". The original UN convention carefully defines peacekeeping operations. There was much argument and debate among the members of the United Nations before agreement was reached on the precise wording of the optional protocol. It would help us to understand the reference to "peacebuilding" if the Minister filled us in later about what happened during those negotiations and about what the member states of the UN had in mind collectively when they agreed on the use of that term.

Thirdly, I would be grateful if the Minister could explain the reasoning for the opt-out that is explicitly included in clause 2(4) in respect of operations to deliver emergency humanitarian assistance in response to natural disaster. I know that the Government have simply imported it; it is an opt-out that is included in the text of the optional protocol. What are the reasons for that opt-out? I simply cannot understand why any country in any part of the world should think it necessary to disapply the protection of international law from people who are working on behalf of the UN to deliver emergency humanitarian assistance following an earthquake or some other natural disaster.

We had a fairly recent case of that; as I understand it, one reason that people became so dissatisfied with the tight definitions of the convention was that it failed to offer protection to the relief workers who supplied food, medicines and emergency accommodation to the victims of the Boxing day tsunami a few years ago. The optional protocol and the Bill that implements it would appear to provide an opt-out that any country could exercise, applied to its territory, when people were sent in to respond to just such an emergency. I do not understand the logic of any country's seeking to have such an opt-out.

It seems to me that there are still some problems with the definition of UN operations, because, even with the additions proposed in the Bill, they basically remain the same as those set out in articles 1 and 2 of the convention. Let me give a few illustrations of those outstanding problems. The Foreign Affairs, Defence and Trade Committee of the New Zealand Parliament, which investigated the optional protocol, pointed out that the original convention

"only covers United Nations operations, and"— this seems to me to be the important point—

"excludes regional peacekeeping operations or peacekeeping operations authorised by the Security Council to be conducted under national or regional command and control."

That is a significant lacuna in the optional protocol and therefore, presumably, in the scope of the Bill.

We are now in a world where the UN in Sudan is seeking to work in concert with regional organisations. In the future, the UN might wish to work together with or to give authority to the African Union or other regional bodies to co-ordinate and lead both peacebuilding and humanitarian operations in particular parts of the world. If the concerns expressed by the New Zealand Parliament are correct, we have a gap in the protection we are offering to the people involved in such operations. That might be the product of a diplomatic compromise that was necessary to obtain agreement on the protocol, but I would be grateful for some further information on that point, especially given that the New Zealand Parliament concludes:

"The majority of casualties continue to be among personnel serving in operations not covered by the automatic application of the Convention."

Another criticism was made by the international lawyer, Mr. Huw Llewellyn, who is quoted at length in the helpful research paper provided by the House of Commons Library. He said in an article published in International and Comparative Law Quarterly in July 2006:

"Emergency humanitarian assistance operations established by autonomous organizations within the UN system and by the Specialised Agencies do not fall within Article II(1)(b)" of the optional protocol because

"They are not established by UN Charter bodies" and the protocol makes specific reference to the charter. Mr. Llewellyn also pointed out:

"for example, operations established by the Food and Agriculture Organization (FAO), or by the World Health Organization (WHO) would not be within the scope of the Protocol."

So those organisations would not be within the scope of the Bill, either.

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