The UK’s Genocide Law Amendment Proposal

by Gregory Gordon

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.

http://opiniojuris.org/2009/07/21/the-uks-genocide-law-amendment-proposal/

6 Responses

  1. Prof. Gordon,

    I guess this isn’t the case you were talking about: http://www.bailii.org/ew/cases/EWHC/Admin/2009/770.html ? The title and the date seem about right, but the content does not.

  2. And another thing…

    It has been argued that Article 7 of the ECHR (like other sources of the rule against ex post facto criminal law) applies only to substantive criminal law, not to matters of jurisdiction. That is to say, the law cannot make crimes of acts that were lawful when they were done, but it can give an additional actor jurisdiction to try acts that always were criminal. It may even be possible, though this is by the way, to extend statutes of limitation after the crimes in question have been committed. (This, certainly, is how the German Federal Constitutional Court reads the relevant article in the German Basic Law [constitution], but I don’t know that the same has been decided at any international level.)

    From the international point of view, then, Mr Straw’s amendment to the ICC Act 2001 might well be lawful because, from the international perspective, it would do no more than establish English (British? – I don’t know, but rather suspect, that the Act has been made to apply throughout the UK) jurisdiction to apply international criminal law.

    The domestic perspective, however, would still be different; the ICC Act 2001 not only gave rise to jurisdiction, but established crimes; before that, crimes in international law – even customary law, which generally speaking is a part of common law – did not form part of English law (see R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136). Making the criminal law of the ICC Act 2001 retroactive would therefore make it retroactive criminal law, notwithstanding the fact that the law has already existed internationally.

    But I think you are right to suggest that Article 7(2) of the ECHR allows us to look beyond the narrow confines of domestic law and ask whether the act now made criminal in domestic law has been so either in domestic or in international law at the time now covered by domestic law.

    Any thoughts?

  3. Tobias,

    I think you’ve hit on the salient issues.  In the end, I think  ECHR Art. 7(2) sanctions it.  Still, it’s a little unsettling to think the law can just be changed at the whim of parliament at any time without judicial review.  On a deeper level, It seems ito contravene basic human rights principles.

  4. There is a very limited form of judicial review available. If the new Act contravenes the ECHR, and with it the Human Rights Act 1998, the British courts will issue a ‘declaration of incompatibility’, holding that primary legislation is incompatible with the HRA. They still cannot strike down primary legislation (as you have said), but the political import of such a declaration is such that Parliament has yet to fail to amend a contravening Act as required.

    For this reason, the European Court of Human Rights has recently considered whether proceedings leading to a declaration of incompatibility are to be considered an effective domestic remedy, to be exhausted before an applicant can go to Strasbourg. They are not, but I think it was a close call. (I will go look for the case later)

    Also, there’s obviously still the ECtHR itself. Granted, that Court never strikes down legislation, it usually only finds a violation and leaves remedies et al. to the respondent State. But obligations obviously arise from that, and again, the political effect is quite important. Like ‘declarations of incompatibility’ (above), ECtHR judgments are invariably reported in Britain as having changed the law.

  5. The case I mentioned there, about a request for a declaration of incompatibility (not) being a domestic remedy to be exhausted under Article 35 of the ECHR, is Burden v. United Kingdom (GC). The relevant observations are at paras. 36 and 43-4.

  6. Dear Tobias and Gregory,

    After being a keen reader of OJ for a long time I’m pleased to be able to chip in – as one of those ‘certain parties’ who have been working for a long time to achieve this change in the law.

    Certainly it is Art 7.2 ECHR which the UK the exception to creating retroactive laws – it was specifically inserted to deal with Nazi-era war crimes.  But in this case it is not substantive law but the application of jurisdiction which is retrospective.  This approach – drawing on Art 7 ECHR and Art 15 ICCPR – has been used by the UK before for its War Crimes Act 1991, as well as Norway, Senegal (for Hissene Habre), and New Zealand.

    We at Aegis (and now the Government) were very careful when drawing up our amendments and Private Members Bill to avoid retroactive law making.  The key risk here is in the list of war crimes included in the Rome Statute and the ICC Act 2001.  Some of those listed in the 2001 Act were not part of international treaty law or ‘the law of civilised nations’ in 1991- I think attacks on UN personnel is the best example.  There also might be debate over whether the distinction between international and internal armed conflict was more distinct in 1991 – before the ICTY Tadic judgment.

    (The reason why 1991 was chosen by the Government  is that this is the date that the ICTY Statute, brought into being by a Chapter VII Resolution at the UNSC – including the UK as a P5 member, asserts jurisdiction over war crimes, crimes against humanity and genocide).

    From memory when the War Crimes Act 1991 was used to prosecute a former Waffen SS war criminal the courts gave the argument that it was retroactive lawmaking short shrift.  It will be interesting to see if the HRA makes any difference.

    Finally, the number of suspects (albeit as defined by the low standard of proof of immigration law) is much higher than 18.  Since 2004, when UK records began, the UK Border Agency has recommended immigration acton against 421 people, and referred 30 cases to the police.  My best guess is that there are a couple of hundred suspects in the UK – a few quite senior.

    Cheers, Nick

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