The UK’s Genocide Law Amendment Proposal
British Justice Secretary Jack Straw recently proposed amending the United Kingdom’s International Criminal Court Act of 2001 (which permits universal jurisdiction prosecution of atrocity crimes) to allow authorities to file cases for atrocities committed as far back as January 1, 1991. This would close a loophole that has been giving safe haven to génocidaires who enter the UK after committing crimes abroad. According to certain sources, there are at least 18 suspected war criminals living in Britain, from countries including Rwanda, Zimbabwe, Somalia, Sierra Leone, Sri Lanka, and Iraq. In April, a British High Court ordered (reversing a lower court ruling) that four Rwandan genocide suspects — Vincent Bajinya, a British national and doctor who had changed his name to Brown, Celestin Ugirashebuja, Emmanuel Nteziryayo and Charles Munyaneza (collectively implicated in the murder of thousands of innocent civilians) must be set free. The Court did not question the quantity or quality of the evidence but ruled that the UK universal jurisdiction law only applied to crimes committed as of 2001 (the crimes at issue, of course, were committed in 1994). Moreover, the Court held that the suspects should not be extradited because they could not receive a fair trial in Rwanda. The proposed amendment would clear the way for their prosecution in British courts.
While this may seem fitting, it could raise some difficult issues. Most glaringly, the amendment is a blatant example of an ex post facto law. Technically, this is not a problem in the UK, which considers Parliament “sovereign.” Under the doctrine of “parliamentary sovereignty,” a properly passed Act of Parliament, regardless of the topic or its merits, is accorded absolute legal effect by the courts. In practical terms, this absolute power to legislate encompasses the right to enact ex post facto provisions that have the express consequence of overturning any judicial decision or previous act of parliament. And, at least as far as the British courts are concerned, this power is not limited in any way by contrary international laws or conventions.
On the other hand, ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights (ECHR), to which the UK is a signatory. By the same token, pursuant to Article 27 of the Vienna Convention on the Law of Treaties, to which the UK is also a signatory, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty obligation. And certainly, ex post facto criminal laws are frowned upon in the UK. But given that the proposed amendment seeks to lessen impunity for the crime of genocide, the crime of crimes, it may seem less controversial than at first blush.
Moreover, in any event, there may be an exception to the prohibition on retroactive laws. Art. 7, para. 2 of the ECHR (and ICCPR, Art. 15, para. 2, for that matter) allows signatories to adopt retroactive laws concerning an act which “at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” Consistent with this, I believe other European criminal codes (Lithuania’s, for example) have imposed retroactive punishment for genocide and other international crimes and ECHR because international law allows retroactive laws concerning international crimes.
The other potentially sticky issue relates to the persons subject to prosecution under the amendment. The current legislation applies only to British citizens and residents. War criminals merely passing through the UK, no matter how egregious their crimes, would be beyond the reach of the law. It should be noted that, in recent years, notorious war criminals such as Félicien Kabuga (genocide financier and founder of the infamous RTLM radio station – I referred to him in my previous post) and Chucky Taylor (Charles Taylor’s son, who was convicted by a U.S. court last year of torture) have passed through the UK without so much as receiving a traffic citation. Perhaps persons subject to the statute should be expanded to include those who are merely present. That is already true for Britain’s torture statute. But then, people like Colin Powell might have to be concerned about attending a conference in London.