How Safe A Haven Is The United Kingdom?
States are bullies. Sometimes the bullies have to be tamed and occasionally an alleged bully seeks refuge in the United Kingdom. There is no doubt that at the present time the United Kingdom is developing and applying its regime for implementing international criminal law in respect of serious international crimes including war crimes and torture. Universal jurisdiction enables the national courts of a state to try a person for a crime committed outside that state, even where there is no link between the suspect, the victim or the place of crime. Extraterritorial jurisdiction is more limited but still very significant. There has been a growing consensus in favour of states pursuing each other’s bullies since the Second World War embodied elegantly in the preamble to the Rome Statute of the International Criminal Court:
- Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation;
- Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes; and
- Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, […] Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9
In this article I will touch on some legal issues raised by this exceptional jurisdiction and try to highlight a few of the challenges which practitioners face when prosecuting or defending in cases where extraterritorial or universal jurisdiction is engaged.
The Legislative Framework
There are four key statutes: The International Criminal Court Act 2001 (ICCA), The War Crimes Act 1991 (a very limited statute which is not considered further herein), The Criminal Justice Act 1988 (CJA) and the Geneva Conventions Act 1957 (GCA). The relevant parts of three of these are the product of the 1949 Geneva Conventions and the 1982 UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT). Both instruments place a legally-binding obligation on states that have ratified them to exercise universal jurisdiction over persons accused of grave breaches of the Geneva Conventions or of torture, respectively, or to extradite them to a country that will. “Grave breaches” include wilful killing, torture or inhuman treatment of people protected by the relevant convention; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; and wilfully attacking civilians. In its turn, the ICCA alone has created 61 substantive offences (genocide eg can be committed in five different ways) and in addition the ancillary offences of aiding, abetting, counselling, procuring, inciting, assisting another, attempting, conspiring to commit or concealing the commission of any of the substantive offences are included as is the criminal liability of commanders etc for failing to prevent the commission of substantive or ancillary offences by those under their control.
The enactment of ICCA in 2001 was a major step forward in the UK’s jurisdiction for serious international crimes. However, under this legislation, crimes committed outside the UK can be prosecuted here only if the suspect is a UK national, a UK resident or a person subject to UK service jurisdiction. Strictly speaking, therefore, this is ‘extraterritorial jurisdiction’ rather than ‘universal jurisdiction’. It is to be noted that similar extraterritorial jurisdiction has been granted to some other grave offences such as sexual offences against children s.72 Sexual Offences Act 2003, fraud and dishonesty Criminal Justice Act 1993, terrorism s.59, 62 & 63 Terrorism Act 2000 and bribery s.109 Anti-terrorism, Crime and Security Act 2001. A current prosecution of a British man called Richard Huckle for offences of rape of children in Malaysia and dissemination of child pornography recorded during the ofences on the dark web is being pursued within these provisions.
The UK is not alone in having enacted legislation to give their courts universal jurisdiction principally for war crimes and torture. An Amnesty International study in 2001 found that over 125 states have universal jurisdiction over at least one serious international crime; that since the end of the Second World War, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law, including Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Netherlands, Norway, Senegal, Spain and the United States of America; and that others, including Mexico, have extradited persons to countries for prosecution based on universal jurisdiction. Amnesty International, Universal Jurisdiction: the duty of states to enact and implement legislation, September 2001.
Possible issues under ICCA prosecutions with extraterritorial rather than universal jurisdiction:
- Is the defendant resident in the UK and therefore subject to ICCA at all? There are now at least 10 different categories of people who could, applying immigration law, be defined as resident and therefore caught eg those who are liable to be deported from the UK but cannot be removed on human rights grounds, those appealing a deportation order and those lawfully detained in the UK.
- When was the alleged crime committed and is it caught? The ICCA originally applied to offences committed post enactment on 1st September 2001 but it was amended by the Coroners and Justice Act 2009 to criminalise conduct on or after 1st January 1991. This covered offences in such theatres as Rwanda and the former Yugoslavia in the 1990s but only as long as the crimes committed before 1st September 2001 were criminal offences at the time of commission, under international law. It follows that in a UK prosecution dating back beyond that date the Crown Court judge will have to consider the status of the crime, historically, in customary international law.
The UK had already gone further than the ICCA in compliance with the requirements in the 1949 Geneva Conventions, their Protocols and the UNCAT to make grave breaches of the convention and torture crimes under domestic law, regardless of where they are committed or by or against whom. However anomalies and inconsistences between the treaties and the domestic law introduced to give effect to them remain. By way of example in respect of torture, s.134 (5)(b) CJA provides a defence for a non-UK official where the pain or suffering inflicted outside the UK was done with ‘lawful authority, justification or excuse under the law of the place where it was inflicted’. UNCAT; on the other hand, has been described as providing an absolute or unqualified prohibition against torture limiting the defence of lawful excuse to pain or suffering ‘arising only from, inherent in or incidental to lawful sanctions’. How this conflict will be resolved remains to be seen. At the time of adoption of UNCAT commentators stated that s.134(5)(b) referred to national legislation only insofar as that legislation was compatible with international law. Whether in fact a s.134 (5)(b) defence will arise on the basis that exceptional circumstances in the country where the alleged torture was committed meant that torture was permitted by the law of that foreign state, is yet to be ruled upon.
Who Investigates And Are Double Standards Involved?
The Counter Terrorism Command division of the Metropolitan Police (“SO15”) has the national mandate for investigating serious international crimes, and the Counter Terrorism Division of the Crown Prosecution Service (CPS) has responsibility for their prosecution. SO15 and the CPS operate together under a published National Protocol on War Crimes and Crimes against Humanity. In accordance with the National Protocol, SO15 will at an early stage of a potential case forward a report to the CPS for its advice on jurisdiction, immunity and any potential offences disclosed by the evidence available. As usual the CPS must decide whether there is a “realistic prospect of conviction”; in these cases, issues of jurisdiction and immunity are highly relevant to the prospects of conviction. If the CPS concludes that there is no reasonable prospect of conviction, SO15 will not proceed with an investigation. The way that the National Protocol has operated in an individual case may be the subject of judicial review by those, often Non-Governmental Organisations, anxious to see more use made of universal jurisdiction, see eg R (FF) v DPP CO/11360/2012.
Prosecutions may also be vulnerable to accusations of double standards on the grounds that universal jurisdiction only serves to prosecute those from third world states, whilst no cases have been brought successfully against the leaders of western states. The Ex-President Pinochet case is sometimes cited in this regard: Spain had charged the former Chilean dictator with torture but was criticised for not seeking to bring to account those responsible for the crimes during the Franco era. Although many African states have expressed approval of the principle of universal jurisdiction in treaties, they sometimes argue that the scope and applicability of the principle of universal jurisdiction outside the context of such treaties remain to be determined. In particular, the African Union has for some time been concerned that the principle is not being applied impartially and objectively by European states.
Immunities & Amnesties – Possible Challenges To Jurisdiction
War crimes or other human rights offences tend by their nature to be committed by those who act as, on behalf of, or with the consent of the State. State immunity is in play to provide a potential albeit controversial exemption. This is especially so in respect of torture which by definition is committed principally by public officials. The two forms of immunity which may attach to state officials have unfashionably latin names: immunity ratione materiae and immunity ratione personae. The former is perpetual immunity in respect of official actions performed on behalf of the state, the latter is limited in the class of individual it covers (usually a Head of State) but broader in that it covers personal as well as official acts for the period in office but narrows to the limits of immunity ratione materiae once the individual no longer holds the office concerned. Recently, in KL v R [2014] EWCA Crim 1729 the Court of Appeal extrapolated from the well-known Pinochet (no 3) decision that there could be no immunity rationae materiae for a former head of state in respect of UNCAT prohibited conduct, in holding that functional immunity ratione materiae could not survive in the face of allegations of torture committed within Nepal which like the UK had ratified the UNCAT although Nepal has not yet enacted the relevant legislation to criminalise torture within Nepal.
Whether such domestic legislation as may enable civil actions for compensation in respect of offences which would come under the ambit of war crimes, torture etc will act to defeat a prosecution in the UK on the basis of abuse of process or double jeopardy is similarly arguable although the Court in KL was not impressed on the particular facts. Genuine amnesties such as those given by the Truth and Reconciliation Commission in South Africa following the end of apartheid could also present a basis for challenging proceedings, although more likely by way of an abuse of process argument analogous to a legitimate expectation arising from a promise not to prosecute rather than as contesting jurisdiction. However, it is unlikely that every sham amnesty granted by a defunct or offending State to protect its officials will result in a stay because not all amnesties are respected equally. The European Court of Human Rights has held that the prohibition on retrospective punishment had not been violated when France declined to give effect to an amnesty granted in Mauritania. Ould Dah v France (2013) 56 EHRR SE17 (App 13113/03.
Evidence Gathering & Case Presentation
The most significant UK public prosecution of a serious international crime under universal jurisdiction to date is the case of Farayadi Sawar Zardad in 2005. Zardad, an Afghan national resident in the UK, was prosecuted for torture and hostage-taking whilst manning a checkpoint in Afghanistan. Neither the defendant nor his victims were British nationals and the witnesses lived outside the United Kingdom. At the initial trial, evidence from Afghanistan had been given via video link. That jury was unable to agree a verdict, but arrangements had been made for more witnesses to travel to the United Kingdom to give evidence in person at the re-trial. The second trial resulted in a conviction and Zardad was sentenced to 20 years’ imprisonment.
A trial that is fair to the prosecution and the defence can only be achieved if both sides can gather evidence relevant to their cases. Obtaining evidence from abroad can be challenging and arduous. Where the country in which the alleged conduct occurred does not wish to assist the prosecution very expensive evidence gathering trips abroad to third countries may be required. Witnesses, who are perhaps unused to travel outside their own small communities, may be required to travel to the third country and this must certainly be preferable from the prosecution’s point of view: the lesson learnt from the Zardad prosection. Sometimes the scene of the alleged crimes may not be made available to the investigating team. Witnesses may be in particular fear of exposing themselves to repercussions in their own country from which the UK has limited means of protecting them and perhaps, very limited legal obligation to do so, although the moral responsibility is plain.
The volume of evidence obtained can be daunting. Equally, gaining access to and considering potentially relevant unused material in the hands of hostile nations or third parties such as NGOs can be problematic. There is no mechanism for extraterritorial compulsion by way of witness summons eg. Persuading a domestic court that the prosecution has complied with its disclosure obligations when it is known that potentially disclosable material has not been inspected because access has not been granted may yet turn out to be an impossible task. What is CPIA compliant, ‘good enough though not perfect’ disclosure will have to be considered by courts in the UK on a case by case basis.
In terms of presenting the case to a jury it is vital to gather expert evidence of the state of the relevant country at the important time. As well as political, military and social contexts the cultural impact of conflict must be the subject of evidence. The United Nations Human Rights Committee will provide many relevant materials including reports of Special Rapporteurs who may have had access to the country while the conflict was going on. Where ethnic or other divisions have led to evidence from one group being deployed to prosecute individuals from another care must be taken to ensure that the evidence can be assessed carefully for credibility and possible bias. In one of the few effective war crimes prosecutions in the UK R v Sawonuik [2000] 2 Cr. App. R. 200 potential witnesses could be interviewed in country but only in the presence of local officials, a process which could, arguably have tainted their evidence given the enthusiasm of the state for the prosecution. Equally, where allegations of torture are made evidence as to the indigenous attitude to torture where available is important, both in respect of educating the jury but also to deal with the s.134(5) defence. The Home Office may be concerned about applications for asylum and may not readily provide visas for entry into the UK for witnesses. Witness protection while in the UK is a serious concern. In some cases, particularly where sexual offences are alleged to have been committed against children abroad the cultural impact of coming forward to be identified as victims of such abuse may make the gathering of that first hand witness testimony near impossible. Thought must be given to reliance on video footage, on expert testimony as to age of those found on the footage and also the gathering of digital and technical evidence via third parties who may host relevant sites.
In terms of travel the other way how are jury views to be accommodated? In R v Savoniuk the jury travelled to Belorussia, a considerable burden on them and also the public purse. At least such a visit was possible given the domestic situation in that country at the time of the trial. Where conflicts remain and travel is dangerous such as countries still recovering from genocide or civil war it is inconceivable that a UK jury would be asked to or able to undertake such a trip.
The availability of special measures such as screens and anonymity should be explained to witnesses from both sides as early as possible. Equally experience has shown that the recruitment of a team of expert, accredited interpreters for the trial who have had no or minimal contact with the investigation is an important preparatory step.
Defence teams will need to ensure access to the field, to gather evidence to meet the prosecution allegations and to obtain the cooperation of witnesses who may be even more reluctant to assist with the defence lawyers do not have the backing of a state to protect them. Where the defence is given good access to the local area close coordination on the ground is essential, obtaining the assistance of the local government and court system where available must be a priority. Equally, expert assistance to challenge where possible, the prosecution evidence must be obtained and should be funded by public legal aid.
Domestic Procedure will have to be adapted to ensure best use is made of the available resources eg the declaration of preparatory hearings is inevitable to ensure that such challenges to legal rulings on eg immunity, amnesty, autrefois convict, admissibility of foreign evidence etc can be made expeditiously avoiding long, expensive trials resulting in convictions which are then over-turned on appeal. The trial judge must be given reading time to prepare for contested matters of law and detailed research of unfamiliar fields such as public international law and the law of war. In essence the discharge of the UK’s obligations under the international law it has espoused could never be as simple as mere enactment of the relevant legislation. This is a fact borne out by the very small number of charges brought in practice so far. However, this is an area of practice ready for expansion as those focussed on redress for war crimes and torture, or the extra-territorial prosecution of child abusers for illegal sex-tourism gain confidence from cases currently making their way through the UK courts.
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