More war crimes trials in London?

Campaigners call for reforms to universal jurisdiction

The government should reform the law of universal jurisdiction so that people accused of major international crimes can more easily be tried in England and Wales, two campaign groups argue in a report published today.

Redress, which pursues legal claims on behalf of survivors of torture, and the Clooney Foundation for Justice, founded by Amal and George Clooney, say that “if a Russian general suspected of crimes against humanity in Ukraine were to visit the UK today, he would be free to do so without fear of prosecution”.¹

The authors explain that

English courts can exercise universal jurisdiction over the crimes of torture, hostage-taking and a small number of war crimes known as grave breaches of the Geneva Conventions if the perpetrator is present in the UK.

English courts also have jurisdiction over genocide, crimes against humanity and war crimes — but only if the perpetrator is present in the UK and is either a UK national or a legal resident.

This means that non-citizens and non-residents can come to London without fear of prosecution, even if they are reasonably suspected of committing genocide.

As a result, there have been only three successful prosecutions for what the authors describe as international crimes.²

They identify four legal impediments:

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

• UK law is inconsistent about how far back prosecutions can go, leaving gaps in the ability to prosecute certain crimes.

• UK legislation does not recognise command and superior responsibility.

• Granting special mission immunity to visiting officials obstructs the ability to prosecute them.

They also outline four practical problems:

• Investigations into international crimes traditionally have not begun before a perpetrator has been identified and is present on UK territory.

• UK investigators face significant challenges in gathering evidence from foreign jurisdictions.

• The UK lacks sufficient mechanisms for international cooperation in investigations.

• There is insufficient coordination between the UK’s relevant national agencies.

To deal with these difficulties, they make a series of recommendations:

• The UK should remove the nationality and residence requirements for prosecutions for genocide, crimes against humanity and war crimes, so that any suspect present in the UK can be prosecuted there.

• The UK should amend the International Criminal Court Act 2001 to ensure that UK courts have jurisdiction over all crimes covered by the court’s Rome statute — genocide, crimes against humanity and war crimes — at least from1991.

• The UK should amend relevant laws to recognise command and superior

  responsibility for all international crimes.

• The UK should refuse to accept an individual as being on a special mission, and potentially entitled to immunity, when there are reasonable grounds to suspect that the individual has been involved in or associated with international crimes.

In a foreword to the report, Baroness Kennedy of The Shaws KC says:

The United Kingdom has been a central voice in the call for international accountability following Russia’s full-scale invasion of Ukraine in February 2022. It led the referral of the situation in Ukraine to the International Criminal Court, donated funds to support the ICC’s subsequent investigation, and co-founded the Atrocity Crimes Advisory Group to support the War Crimes Unit of the Office of the Prosecutor General in Ukraine.

Yet despite its robust judicial system, top-tier law schools and an abundance of highly skilled legal professionals, the UK has done little in the last decade to deliver meaningful accountability for international crimes in its own courts.

If the UK is to continue to play a leading role in promoting justice at the international level, it must match this rhetoric with concrete actions domestically.

Comment

Kennedy goes on to say that the UK should not become a safe haven for those who should be facing justice in a court of law.