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14 Dec 2023

Universal Jurisdiction and Strengthening Accountability for International Crimes in England and Wales

The Clooney Foundation for Justice and Redress have unveiled a joint report (“the Clooney Redress report”) calling for reform to the way in which the UK prosecutes those suspected of crimes against humanity. Publication of the report follows Russia’s invasion of Ukraine in February 2022.

The UK has led much of the diplomatic and political effort to secure international accountability following the invasion. It galvanised allies to refer atrocities in Ukraine to the International Criminal Court (“ICC”), leading to 38 nations grouping together to expedite an ICC investigation. It co-founded the Atrocity Crimes Advisory Group for Ukraine, in order to support the War Crime Unit of the Office of the Prosecutor General of Ukraine.

In February this year, Rishi Sunak told the Munich Security Conference that, “The whole world must hold Russia to account […] Because Russia’s invasion, its abhorrent war crimes and irresponsible nuclear rhetoric are symptomatic of a broader threat to everything we believe in”. On first reading, Sunak’s words appear trenchant, but the reality behind them suggests that his bark may be worse than his bite.

The principle of universal jurisdiction provides a legal means whereby crimes against international law can be prosecuted in a state even where those crimes occurred outside of that state’s national territory, and where neither the victim nor the accused is a national of that state. Universal jurisdiction is based on the notion that crimes against humanity, war crimes, genocide and torture injure the whole international community, which individual states may act to protect wherever and by whomever the crimes were committed.

Following the atrocities of World War II, the UK became a leading voice in the movement to recognise certain crimes as being so damaging to the international order that they must be prosecuted regardless of where they occurred, or the nationality of the accused. The UK was a key participant in the Nuremberg trials and the establishment of international tribunals for Rwanda following the genocide, the former Yugoslavia after the war crimes that took place during the Balkans conflicts in the 1990s, and Cambodia following the atrocities of the Khmer Rouge regime. The UK was also a founding member of the ICC. It would appear then that the UK, at least in the international sphere, has reflected upon the legacy of the famous words of the Judgment of the Nuremberg Tribunal:

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

However, there is an argument to suggest, as Redress and the Clooney Foundation do, that the UK’s actions in terms of promoting international justice are not matched by its domestic rhetoric.

The UK’s domestic treatment of international crimes

The main basis of English criminal jurisdiction is territorial, meaning that UK courts are generally only able to exercise jurisdiction over those who commit crimes within England and Wales or – in certain cases – where UK citizens commit crimes abroad. That said, trials can be held in the UK for some international crimes, pursuant to the principle of universal jurisdiction. The UK is a signatory to the Rome Statute, which requires state parties to pass domestic legislation to criminalise genocide, crimes against humanity and war crimes. In a similar vein, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) obligates signatories (of which the UK is one) to criminalise torture.

Genocide in the UK is criminalised by the International Criminal Courts Act 2001 (“ICCA”); the Criminal Justice Act 1998 criminalises torture, and the Geneva Conventions Act 1957 proscribes war crimes. The effect of this legislation is that UK courts can exercise jurisdiction over relevant crimes when there exists no territorial link to the UK. However, despite the domestic legislation, only three international crimes have been successfully prosecuted in the UK.

Why doesn’t the UK prosecute more international crimes?

The last successfully prosecuted universal jurisdiction trial in the UK (R v Payne [2006] Military Court, H DEP 2007/411) took place over 15 years ago. By contrast, courts in Germany, France, Belgium and Sweden have in much more recent years convicted ISIS fighters for genocide in Iraq, a Syrian G.I.D. officer for torture in Syria and Rwandan nationals for their roles in the 1994 genocide.

A 2008 report of the Joint Committee on Human Rights referred to “gaps” and “inconsistencies” in the law as a result of a governmental failure to implement fully the international conventions referred to above. These gaps, the Joint Committee report states, “effectively provide impunity to international criminals, allowing them to visit and in some cases stay in the UK without fear of prosecution.”

The Clooney Redress report highlights four challenges to the effective prosecution of international crimes in the UK:

  1. UK law limits prosecutions for most international crimes to suspects who are UK residents or citizens.

The ICCA gives English courts jurisdiction only over prosecutions brought against those resident in the UK, or of British nationality. Practically then, those suspected of genocide, war crimes or crimes against humanity can travel to and remain for some time in England and Wales without fear of being prosecuted by the UK authorities, provided they are not a British national or resident in this country. Sir Ken Macdonald KC, in written evidence submitted to the Joint Committee on Human Rights, described this system as “illogical”.

Lord Lester of Herne Hill, when debating the Bill which became the ICCA, noted that “there can be little justification for refusing UK courts full and universal jurisdiction over ICC crimes committed by non-nationals.” Despite this opposition, the Government has maintained its narrow application of the principle of universal jurisdiction. In its response to the Joint Committee on Human Rights’ report, the Government said, “It is important that our courts concentrate first and foremost on those with a connection here, and that we are not seen to be global prosecutors on behalf of other countries.”

The Clooney Redress report calls for the British Government to remove the nationality and residence requirements for prosecutions for genocide, crimes against humanity and war crimes under the ICCA, and instead suggests it require only presence, as per the existing UK law on torture and war crimes that amount to “grave breaches” of the Geneva Conventions.

2. UK law is inconsistent about temporality, leaving lacunae in the jurisdiction to prosecute certain crimes.

The UK cannot prosecute international crimes if committed before a certain date. Torture cannot be prosecuted if committed before 1988. Genocide committed before 1 January 1991 cannot be prosecuted. Crimes against humanity and war crimes can only be prosecuted if committed after 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted to a criminal offence under international law. In contrast, “grave breaches” of the Geneva Conventions can be prosecuted if committed in the context of an international armed conflict post-dating 1957.

The Clooney Redress report recommends that the UK amends the ICCA to ensure that UK courts have jurisdiction over all crimes covered by the Rome Statute from at least 1991.

3. English and Welsh law does not recognise “command and superior responsibility” for all international crimes.

“Command and superior responsibility” are two modes of establishing liability that supplement those available for ordinary crimes.

“Command” responsibility is the legal responsibility of military commanders whilst “superior” responsibility refers to the responsibility of civilian leaders for the acts of their subordinates. An “organiser of a criminal enterprise” can be prosecuted “for the actions of subordinates who carry it out” or if they “aided, abetted, or encouraged a crime” under UK law but, before the ICCA, they could not be prosecuted for the failure to prevent or punish the crimes of their subordinates. The ICCA implemented Article 28 of the Rome Statute, becoming the first piece of legislation to incorporate command and superior responsibility in English and Welsh law. It supplements the modes of liability available for ordinary crimes in relation to crimes against humanity and war crimes, but it does not extend to international crimes such as torture. Further, as yet, no commander has been prosecuted in the UK for a failure to prevent or punish the crimes of their subordinates.

In practical terms, this means that a superior or commander whose subordinates have committed torture could not be prosecuted for a failure to prevent or punish the crimes of his subordinates by the UK courts. A commander could be prosecuted under other liability modes, but Redress and the Clooney Foundation argue that these alternative theories of liability do not capture the responsibility of architects of these crimes for acts that they should have prevented, or punished. Command responsibility, they say, acts as a deterrent for grave crimes by obligating superiors to take proactive measures to curtail the behaviour of those under their control.

To that end, the Clooney Redress report urges Parliament to amend relevant laws to recognise command and superior responsibility for all international crimes. This is particularly important for the crime of torture which is well known to be used as part of a deliberate state policy to subjugate a civilian population and to brutalise prisoners of war to sap morale.

4. “Special Mission Immunity” (“SMI”) precludes the ability to prosecute visiting officials.

Immunities are enjoyed by those on “special missions” and were codified in the New York Convention on Special Missions of 1969. This Convention was signed by the UK in 1970 but never ratified. A special mission, as per Article 1(a) of the New York Convention, is a “temporary mission, representing a State, which is sent by one State to another with the consent of the latter, in order to carry out official engagements on behalf of the sending State”. In other words, a special mission is a means of carrying out international diplomacy by persons who have no other formal diplomatic status.

Article 31 of the New York Convention provides that the representatives of the sending State and the members of its diplomatic staff in the special mission shall enjoy immunity from the criminal jurisdiction of the receiving State. SMI has no statutory basis in the UK and any governmental decision to grant SMI is based on customary international law.

In 2015, Mahmoud Hegazy (an Egyptian General) visited an arms fair in the UK and took part in meetings with the Secretary of State for Defence and the FCDO. The political party that formed the elected government of Egypt between June 2012 and July 2013 alleged that Hegazy had been involved in torture during a demonstration. The party’s solicitors told the UK authorities of Hegazy’s likely presence in the UK and requested that he be arrested. The FCDO granted him special mission immunity, which precluded his arrest. Judicial review proceedings against the FCDO and DPP were brought, and the Divisional Court reiterated the fact that SMI is based on customary international law.

Redress and the Clooney Foundation question the notion that SMI is customary in international law. The Divisional Court’s conclusion in the Hegazy case that SMI was a customary State practice was based on the customs of only eight States.

The Clooney Redress report suggests that there is a tension between the UK’s conferral of SMI and several of its international legal obligations. UNCAT requires States to criminalise torture on an extraterritorial basis, and the UK courts recognised this in Pinochet (No. 3). The UN Convention on the Prevention and Punishment of Genocide requires States (including the UK, as a party) to take measures to prevent and punish genocide, including if the perpetrators are “responsible rulers [or] public officials”. Similarly, the Geneva Conventions obligate parties to prosecute or extradite suspected war criminals. The Rome Statute notes the “irrelevance of official capacity” in rejecting SMI.

The Clooney Redress report urges the UK to codify its approach to SMI. It calls on the UK to refuse to grant SMI to an individual when there are grounds to suspect that they have been involved in international crimes.

The Clooney Redress report sets out a crucial path towards delivering accountability in global conflicts worldwide. It calls upon the UK to consider how it can work towards delivering accountability on a domestic level to ensure that survivors of international crimes are honoured and to prevent the UK becoming a place of sanctuary for those attempting to evade justice.

Now is the time for the UK to reinvigorate its commitment to universal jurisdiction by ensuring that there can be no safe harbour or hiding place here for war criminals. To do that, there should be a far greater focus on investigation and prosecution in the UK of those responsible for grave international crimes where perpetrators land on UK territory. This country’s legal system is often held up as the “gold standard” internationally. In order to maintain this reputation, the UK should act upon the recommendations of the Clooney Foundation and Redress. In doing so, it would do well to heed the words of Kofi Annan, the then UN Secretary-General, to the International Bar Association in 1997 prior to the establishment of the ICC:

“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end.”

 

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