1 Introduction
Background
UK law regarding genocide and related crimes
1. Over the last century, the international community
has agreed that genocide, war crimes (in both international and
internal armed conflicts), crimes against humanity, torture and
hostage-taking are criminal offences of a particularly egregious
nature, which require the extension of the domestic courts' normal
jurisdiction to ensure that perpetrators are brought to justice,
wherever they may be.
2. These crimes are defined by separate international
instruments and, as a result, are dealt with in a piecemeal and
inconsistent fashion in UK law. Suspects of genocide, for example,
may visit the UK without fear of arrest, but suspects of torture
may not. Suspects against whom a case has been made sufficient
to warrant their extradition to Rwanda for trial continue to live
comfortably in the UK because UK courts have found that the Rwandan
criminal justice system would not offer them a fair trial.
3. Despite recognising the "difficulties"
with the existing law, the Minister, Clare Ward MP, defended the
Government's long-held position against extending jurisdiction
over genocide, crimes against humanity and war crimes in civil
wars retrospectively, when she gave oral evidence on 1 July.[1]
One week later, on 7 July, the Secretary of State for Justice
announced that the extra-territorial jurisdiction of UK courts
over genocide, crimes against humanity and war crimes in civil
wars would be made retrospective to 1991, and that they would
consider the need to more clearly define the 'residence' requirement.[2]
We are pleased that the Government has reconsidered the need for
law reform but we are unable to consider the details of the Government's
proposals in depth because they will be published in the autumn.
We have also not had a chance to call for further evidence on
this development, although we have received a short supplementary
memorandum from the Aegis Trust.[3]
4. In this report, we consider the reasons for the
existing anomalies in UK law and their practical consequences.
We comment on the Government's recently announced policy change,
and make recommendations aimed at removing what amount to impunity
gaps for the world's worst criminals.
Reparations for torture victims
5. The UK has universal jurisdiction to prosecute
individuals suspected of committing torture abroad after 1988,
under the Criminal Justice Act 1988.[4]
However, victims cannot get compensation by suing foreign governments
for torture: states are immune from the civil jurisdiction of
domestic courts under the State Immunity Act 1978.
6. There are numerous exceptions from state immunity
under the 1978 Act, including for employment and property disputes.
Article 14 of the UN Convention Against Torture (UNCAT) recognises
the right of torture victims to reparations. International law
regarding state immunity is developing; while extra-territorial
civil jurisdiction is not currently required of states,
states are arguably permitted to provide their courts with
such jurisdiction. The Government could therefore legislate to
create extra-territorial civil jurisdiction through the Torture
(Damages) Bill.
7. In this report, we examine the existing state
of affairs in the UK regarding reparations for torture victims.
We make recommendations aimed at realising the rights of torture
victims to compensation and rehabilitation.
Our inquiry
8. The Committee issued a call for evidence on 4
February 2009 seeking evidence on the following:
- the number of prosecutions
under the Genocide Act 1969, the Geneva Conventions Act 1957 and
the International Criminal Court Act 2001 for genocide, war crimes
and crimes against humanity offences committed abroad, and their
outcomes;
- the number of suspected perpetrators of genocide,
war crimes and crimes against humanity present in the UK who cannot
be prosecuted because of the date the crimes occurred or because
they are not resident in the UK;
- the rationale for the differences in the legal
regimes applying to the offences of genocide, war crimes and crimes
against humanity committed abroad; and
- whether the law should be changed to ensure it
is more consistent and what the practical consequences of change
might be, for example in terms of police resources required to
investigate such crimes.
9. In addition, we decided it would be fitting to
consider the jurisdictional issue addressed by the Torture (Damages)
Bill, which passed the House of Lords in 2007-08 and was introduced
in both Houses during the current parliamentary session but which
has not yet reached the statute book.
10. In response to the call for evidence, we received
13 memoranda, which we publish with this report. We took oral
evidence on 19 May from the former Director of Public Prosecutions,
Sir Ken Macdonald QC, Nick Donovan from the Aegis Trust, and Daniel
Machover from Hickman and Rose Solicitors. We heard from Kevin
Laue of Redress and Clare Ward MP, Parliamentary Under-Secretary
of State, Ministry of Justice, on 1 July.
11. We simultaneously conducted a broader inquiry
into UK policy on the use of torture and have therefore kept the
issues for consideration in this inquiry narrow. In particular,
issues regarding the UK's compliance with international law in
relation to complicity in torture are considered in our separate
report on that inquiry.
Structure of our Report
12. In chapter 2, we provide an overview of the existing
international and UK law regarding genocide and related crimes.
We examine the inconsistencies of the Government's implementation
of international law and the practical implications. We then consider
how UK law could be changed to remedy the impunity gaps. In chapter
3, we consider the international and domestic law regarding extra-territorial
civil jurisdiction for torture. We then consider proposals for
changing the law, in particular the Torture (Damages) Bill currently
before both Houses.
1 Q62, Q66, Q68; Q59-Q80. Back
2
The Secretary of State, Jack Straw's Written Ministerial Statement
was on the Coroners and Justice Bill, which the Government intends
to amend at the Report Stage in the House of Lords to amend the
International Criminal Court Act 2001. Back
3
Ev 23 Back
4
See para 13 and footnote 5 for the definition of 'universal jurisdiction'.
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