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Published online by Cambridge University Press: 03 August 2010
As a precursor to the United Kingdom's ratification of the Rome Statute of the International Criminal Court (ICC) in 2001, the respective Parliaments in the UK adopted two Acts to implement the obligations that treaty imposed on the UK, and to implement the international crimes, as defined in that treaty, into the law of the UK. When the International Criminal Court Act (ICC Act) was being debated in 2001, Baroness Scotland, speaking for the Government, explained that part of the raison d'etre of the Act was that the UK ought not to be seen as a safe haven for international criminals. However, in line with article 11 of the Rome Statute, the jurisdiction of UK courts over such offences, insofar as they were not already covered by the Geneva Conventions Act 1957 and the Genocide Act 1969 (the latter of which was repealed by the ICC Act) only applied prospectively.
1 2187 UNTS 90.
2 International Criminal Court Act 2001 c.17, International Criminal Court (Scotland) Act 2001, 2001 ASP 13. On the legislation for England and Wales see, eg, R Cryer and O Bekou, ‘The Core Crimes and ICC Cooperation in England and Wales’ (2007) 5 Journal of International Criminal Justice 441; R Cryer, ‘Implementation of the International Criminal Court Statute in England and Wales’ (2002) 51 ICLQ 733.
3 Hansard HL vol 623 cols 418–419 (2001) speaking of the Scottish Legislation on point. A sentiment expressly reiterated in the context of the debate on this item in 2009, Hansard HL vol 713 col 1065 (26 October 2009) (Lord Carlile); col 1071 (Lord Bach, for the Government).
4 S 83 of the ICC Act.
5 Hansard HL vol 713 col 1068 (26 October 2009) (Lord Hannay). See also A Fallon, ‘Man arrested in UK suspected of war crimes in Croatia’ The Guardian (London, England, 3 April 2010).
6 Brown et al v The Government of Rwanda and the Secretary of State for the Home Department [2009] EWHC 770.
7 The Aegis Trust, in particular, had a crucial role in bringing the matter forward, see Lord Carlile, Hansard HL vol 713 col 1065 (26 October 2009). Redress, JUSTICE and African Rights also played important roles (col 1067 (Baroness D'Souza)). In the interests of full disclosure, one of the authors (Robert Cryer) ought to disclose that he was consulted by the Aegis Trust about their proposals.
8 There may be an argument that customary international law, being in many instances directly pleadable before UK courts, could provide the basis for prosecution for war crimes without a statute. This route to criminalization in the UK legal order was just about left open by the House of Lords in R v Jones et al [2006] UKHL 16, but probably was not robust enough to guarantee that appropriate action could be taken.
9 The relevant provisions of the Act came into force on 6 April 2010.
10 Which apply to England and Wales, and, mutatis mutandis, Northern Ireland.
11 Ss 58 and 59, which are similarly amended to ss 51 and 52, are the equivalent for Northern Ireland.
12 Section title and s 65A(1).
13 Genocide Convention, art I. 78 UNTS 277.
14 Judgment of the International Military Tribunal for the Trial of Major German War Criminals (London: HMSO, 1947) vol 22, 467.
15 HL vol 713, col 1070 (26 October 2009) (Lord Bach).
16 Of course, it is true, though, that less attention was paid to international criminal law at the time.
17 R v Sawoniuk (2001) 2 Cr App R. 220.
18 See Ganz, G, ‘The War Crimes Act 1991—Why No Constitutional Crisis?’ (1992) 55 Modern Law Review 87CrossRefGoogle Scholar; Richardson, AT, ‘War Crimes Act 1991’ (1992) 55 Modern Law Review 73CrossRefGoogle Scholar; C Greenwood, ‘The War Crimes Act 1991’ in H Fox and MA Meyer (eds), Armed Conflict and the New Law: Effecting Compliance (London, BIICL, 1993) 215.
19 213 UNTS 221.
20 Emphasis added. See generally on article 7 ECHR, DJ Harris, M O'Boyle, EP Bates and CM Buckley, Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights (2nd edn., OUP, Oxford, 2009) ch 7.
21 Indeed, when the European Court of Human Rights has dealt with article 7 in this context it has, it must be said, been remarkably generous to States prosecuting international crimes. In Jorgić v Germany the Court was prepared to accept that a prosecution for genocide, on the basis of an incorrect (and broader) interpretation of the scope of the crime than international law provided for could be defended against challenge on article 7 grounds: Jorgić v Germany [2007] ECHR 583 (12 July 2007), paras 89–116. For the most recent pronouncement on article 7 by the Grand Chamber see Kononov v Latvia [2010] ECHR 667 (17 May 2010).
22 See, eg, R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure (2nd edn., CUP, Cambridge, 2010) 8.
23 Hansard HL vol 713 col 1070 (26 October 2009) (Lord Bach).
24 ibid.
25 ibid.
26 That the criminality of violations of common article 3 can be considered uncontroversial as far back as 1991 might be questioned by some, but there is good evidence now that this was the case (see note 30). Grave Breaches of the Geneva Conventions perpetrated anywhere have been crimes in UK law since 1957, so raised no issue here.
27 Geneva Conventions (Amendment) Act 1995, ch 27.
28 On the relations between the various influences that domestic courts may rely upon see R Cryer, ‘Neither Here nor There? The Status of International Criminal Jurisprudence in the International and UK Legal Orders’ in M Bohlander and K Kaikobad (eds) International Law and Power: Perspectives on Legal Order and Justice: Essays in Honour of Colin Warbrick (Brill, The Hague, 2009) 183.
29 Although, strictly, the ICTY determines the content of custom at the time of the conduct, not the start-date of its jurisdiction.
30 Prosecutor v Tadić, IT-94-1-AR72, 2 October 1995.
31 Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) SCSL-2004-14-AR72-E, 31 May 2004. See Happold, M, ‘International Humanitarian Law, War Criminality and Child Recruitment’ (2005) 18 Leiden Journal of International Law 283CrossRefGoogle Scholar. There are also aspects of the definitions of crimes in the Rome Statute that are narrower than general international law permits (see eg, R Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (CUP, Cambridge, 2005) ch 5; A Cassese, International Criminal Law (2nd edn., OUP, Oxford, 2008) 124–126) these, on the other hand, do not raise a retrospectivity issue, rather than an impunity one.
32 ibid, Dissent of Judge Robertson.
33 Explanatory notes for the Coroners and Justice Act, para 400. If it did not fulfill this requirement, then a UK court would be open to challenge under section 6 of the Human Rights Act when convicting someone of the relevant offence.
34 Prosecutor v Delalić, Mucić, Delić and Landžo, Judgment, IT-96-21-A, 20 February 2001, paras 216–241; Prosecutor v Bemba Gombo, Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo IC-01/05-01/08, 15 June 2009, paras 432–434.
35 S 70 (2) of the ICC Act.
36 S 53(6). Under s 53(5) of the ICC Act a conviction for primary or secondary liability for murder results in a mandatory life sentence. These have been amended now by s 70(2), which inserts s 1A into the Geneva Conventions Act.
37 Hansard HL vol 713 col 1071 (26 October 2009) (Lord Bach).
38 S 1 of the Genocide Act.
39 Kononov v Latvia [2010] ECHR 667 (17 May 2010), para 185.
40 Kafkaris v Cyprus [2008] ECHR 143 (12 February 2008), para 140.
41 Klinge, III LRTWC 1, 3. Of course, for many (perhaps most) States, the death penalty is unlawful for other reasons.
42 Prosecutor v Delalić, Mucić, Delić and Landžo, Judgment, IT-96-21-T, 16 November 1998, para 817.
43 S 51(2)(a).
44 Including those under UK service jurisdiction, ibid.
45 S 68(2)(a).
46 Hansard HL vol 712 col 660 (7 July 2009) (Lord Bach).
47 See the Joint Committee on Human Rights, Closing the Impunity Gap: UK Law on Genocide (and Related Crimes) and Redress for Torture Victims, Twenty-fourth Report of Session 2008-09, HL Paper 153/HC 533, para 51, and the recommendations made by several of the memoranda submitted in evidence (JCHR). See, also, Hansard HL vol 712 cols 655–658 (7 July 2009) (Lords Carlile, Falconer, Hannay, and Elystan-Morgan).
48 Memorandum submitted by the Ministry of Justice to the JCHR, para 13.
49 Hansard HL vol 712 col 660 (7 July 2009) (Lord Bach).
50 Memorandum submitted by the Ministry of Justice to the JCHR, para 10.
51 ibid. These include the Geneva Conventions of 1949, the International Convention against the Taking of Hostages 1979, and the Convention against Torture 1984.
52 ibid.
53 cf J Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86, 91.
54 S 72, which disapplies the jurisdictional aspects of the dual criminality rule for crimes in the ICC Act, implicitly accepting that other States may lawfully use broader jurisdictional claims than the UK for such offences.
55 S 70(4) of the Coroners and Justice Act 2009.
56 Ss 67A(1)(a) and (b).
57 Memorandum submitted by the Ministry of Justice to the JCHR, para 12.
58 Hansard HL vol 713 col 1073 (26 October 2009) (Lord Bach).
59 S 67A(1)(d).
60 S 67A(1)(e).
61 S 67A(1)(f)(i). The subsection requires that the dependent is actually named in the application or claim.
62 S 67A(1)(f)(ii).
63 S 67A(1)(g).
64 S 67A(1)(h)(i).
65 Ss 67A(1)(h)(ii) and (iii).
66 S 67A(1)(i).
67 S 67A(1)(j).
68 Although art 1F(a) does not list genocide as a separate crime, the conduct nonetheless falls within the meaning of crimes against humanity and is thereby covered by the provision: Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21 May 1999, para 89.
69 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the 24th Meeting, UN doc. A/CONF.2/SR.24.
70 Immigration Rule 339C.
71 Immigration Rule 339D(i).
72 Gurung v Secretary of State for the Home Department [2002] UKIAT 04870.
73 The War Crimes Unit in the UK Border Agency investigated 1863 individuals for genocide, war crimes and crimes against humanity between 2004-2008, and recommended that immigration action be taken against approximately 300 individuals. Following these recommendations, 138 adverse immigration decisions were made which included the refusal of entry and leave to remain in the UK, as well as the denial of protection under the Refugee Convention: Hansard HC vol 480 col 1066W (14 October 2008) (Mr Woolas); and Hansard HC vol 482 col 1345W (13 November 2008) (Mr Woolas).
74 Ss 67A(2)(a)–(d).
75 See Verkaik, R, ‘Britain a “Safe Haven” for War Criminals’ The Independent, (London, England, 6 April 2010)Google Scholar.
76 Hansard HL vol 713 cols 1067–68 (26 October 2009) (Baroness D'Souza). The same point was made by the JCHR, (note 47) para 76, and the Aegis Trust.
