Closing the Impunity Gap: UK law on genocide and related crimes

Closing the Impunity Gap: UK law on genocide and related crimes - Human Rights Joint Committee Contents

2 Genocide and related crimes

The existing law

13. The UK has 'universal jurisdiction' over the crimes of torture, hostage-taking and war crimes in international armed conflicts ('grave breaches' of the 1949 Geneva Conventions).[5] In practice, the UK has only exercised 'extra-territorial jurisdiction' in relation to these crimes; that is, jurisdiction has only been exercised when the accused has been present in the UK to be arrested.[6] The UK has not legislated for universal jurisdiction over genocide, crimes against humanity and war crimes in civil wars and those crimes have not been subject to the same degree of extra-territorial jurisdiction. This has resulted in inconsistencies in the UK's capacity to prosecute international criminals.

14. The rationale for the different legal positions stems from the way international law developed. Broadly speaking, the UK has implemented its international obligations as required by international conventions, which have been agreed at different times, reflecting the conflicts of the 20^th century.

15. Below is an overview of the differences in UK law between these crimes and the reasons the law developed the way it did in each case.

Torture

16. UK law allows prosecution for torture committed after 1988, regardless of where the crime was committed, and whether or not there is any connection to the UK.[7] This implements articles 4 and 5 of the 1984 UNCAT, which required states to establish extra-territorial jurisdiction over the crime of torture. The UK therefore went further than required by establishing universal jurisdiction.

Hostage-taking

17. UK law allows prosecution for hostage-taking committed after 1982, regardless of where the crime was committed and whether or not there is any connection to the UK.[8] This implements the 1979 International Convention Against the Taking of Hostages, which required states to establish extra-territorial jurisdiction over such acts.[9] The UK therefore went further than required by establishing universal jurisdiction.

War crimes in INTERNATIONAL armed conflicts/'grave breaches' of the Geneva Conventions of 1949

18. UK law allows for prosecution of 'grave breaches' of the Geneva Conventions committed after 1957, regardless of where the crime was committed and whether or not there is any connection to the UK.[10] This implements the Geneva Conventions of 1949, which required states to establish universal jurisdiction over grave breaches in international armed conflicts (not internal armed conflicts).[11]

Nazi war crimes

19. The War Crimes Act 1991 establishes the extra-territorial jurisdiction of the UK over murder committed in Nazi-occupied Europe between 1939 and 1945. It allows for UK citizens and residents to be prosecuted, but not simply those found on UK territory. This jurisdiction was not required by a particular international convention.

War crimes in INTERNAL armed conflicts

20. The International Criminal Court Act 2001 ("ICC Act 2001") established jurisdiction over British citizens and residents for war crimes in internal armed conflicts ("civil wars"), as well as international armed conflicts, committed after the date the Act came into force in 2001. This is as a consequence of the 1998 Rome Statute of the International Criminal Court ("the Rome Statute"), which places 'serious violations' of article 3, common to the four Geneva Conventions of 1949, on the same legal footing as 'war crimes' in international armed conflicts. The Rome Statute makes all war crimes committed after it came into force justiciable before the International Criminal Court (ICC) where the domestic courts of State Parties do not have jurisdiction.[12] It was therefore against international law to commit war crimes in civil wars from 1949, but international law does not expressly require states to establish extra-territorial jurisdiction over war crimes in civil wars.

21. The UK has no jurisdiction to prosecute suspects found in the UK if they are not British citizens or residents and the crime was committed abroad; and there is no jurisdiction to prosecute acts committed before 2001.

Genocide

22. The Genocide Act 1969 criminalised genocide committed in the UK, in line with the 1948 Convention on the Prevention and Punishment of the Crimes of Genocide ("the Genocide Convention"), which did not oblige states to establish extra-territorial or universal jurisdiction over genocide. In 1998, the Rome Statute gave the ICC jurisdiction over the crime of genocide. For the reasons mentioned in paragraph 20 above, the ICC Act 2001 extended the UK's jurisdiction to prosecute British nationals or residents for genocide committed abroad after 2001.

23. The UK has no jurisdiction to prosecute suspects found in the UK if they are not British citizens or residents and the crime was committed abroad; and there is no jurisdiction to prosecute acts committed before 2001 unless they were committed in the UK.

24. Mr Machover of Hickman and Rose Solicitors told the Committee that at the time of the Genocide Convention, "diplomats thought there would be an international criminal court and so the concept of universal jurisdiction was not introduced [as a duty]."[13]

Crimes against humanity

25. The ICC Act 2001 established extra-territorial jurisdiction over British citizens and residents for crimes against humanity. There has never been an international convention regarding crimes against humanity, but they are defined in many international texts, including Article 7 of the Rome Statute.[14] There is some consensus that the first official recognition that crimes against humanity are "beyond any doubt part of customary law" was 1 January 1991, when the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted.[15]

26. The UK has no jurisdiction to prosecute suspects found in the UK if they are not British citizens or residents and the crime was committed abroad; and there is no jurisdiction to prosecute acts committed before 2001.

27. The table below summarises the jurisdiction available to prosecute each of these international crimes in the UK, highlighting the inconsistencies between the first group of crimes - war crimes in international armed conflicts, torture, and hostage-taking - and the second - genocide, crimes against humanity and war crimes in civil wars.
Table 1: dates from when UK has jurisdiction to prosecute crimes committed abroad

Crime Jurisdiction to prosecute UK residents? Jurisdiction to prosecute non-residents?

War crimes - international armed conflicts For acts committed post 1957 For acts committed post 1957

Torture For acts committed post 1988 For acts committed post 1988

Hostage taking For acts committed post 1982 For acts committed post 1982

War crimes - Nazis For acts committed post 1939-1945 None

War crimes - civil wars For acts committed post 2001 None

Genocide For acts committed post 2001 None

Crimes against humanity For acts committed post 2001 None

WHAT DO THE INCONSISTENCIES MEAN IN PRACTICE?

28. The staggered development of international and domestic law has resulted in a "patchwork of norms"[16] containing "anomalies" and "gaps"[17] and is described by the former Director of Public Prosecutions, Sir Ken Macdonald QC, as "illogical".[18] The gaps in the law provide impunity to several categories of international criminals.[19]

Impunity for non-residents

29. Suspects of genocide, war crimes in civil wars, or crimes against humanity who are not 'resident' in the UK cannot be prosecuted in the UK under the ICC Act 2001.[20] In practice, this means suspects of these crimes can visit the UK without fear of prosecution, in some cases staying for lengthy periods of time. In contrast, suspects of torture, war crimes in international armed conflicts, or hostage-taking can be arrested and prosecuted if they set foot in UK territory. Israeli General Almog was threatened with prosecution for alleged war crimes in the Palestinian territories (an international armed conflict) under the Geneva Conventions Act 1957 after arriving in the UK for a visit.[21]

Impunity for crimes committed pre-2001

30. Acts of genocide, war crimes in civil wars, or crimes against humanity committed abroad before 2001 also cannot be prosecuted in the UK. In contrast universal jurisdiction over the crimes of torture, war crimes in international armed conflicts and hostage-taking was enacted in the UK relatively quickly after the international community recognised each as crimes (1988, 1957 and 1982 respectively) and therefore suspects can be prosecuted in the UK for acts committed after those dates. In practice, this means charges cannot be brought for genocide, war crimes in civil wars or crimes against humanity committed in several recent conflicts, such as the Rwandan genocide in 1994.

PROSECUTIONS IN THE UK

31. The Committee asked for evidence regarding the numbers and outcomes of prosecutions for genocide, war crimes and crimes against humanity under the Genocide Act 1969, the Geneva Conventions Act 1957 and the ICC Act 2001.

32. The Government advised us that:[22]

There were no prosecutions under the Genocide Act 1969 (repealed by the ICC Act 2001).
There is no record of prosecutions for genocide under the ICC Act 2001.
There is no record of prosecutions for war crimes under the Geneva Conventions Act 1957.
Offences under the ICC Act 2001 are not recorded separately so details of cases or their outcomes under that Act cannot be provided.
There has been one successful prosecution for torture under section 134 of the Criminal Justice Act 1988 for torture committed in Afghanistan in the 1990s (this case also involved a successful prosecution for hostage-taking under the Taking of Hostages Act 1982).[23]

33. We also know that:

There have been two prosecutions (one successful) for Nazi war crimes under the War Crimes Act 1991.[24]
In 2003, an application was filed for an arrest warrant for Mr Narendra Modi, Chief Minister of the State of Gujarat, India, under section 134 of the Criminal Justice Act 1988 following allegations of torture.[25]
In September 1997, a Sudanese doctor working in Scotland, Mohammed Ahmed Mahgoub Ahmed Al Feel, was charged with torture under the 1988 Act. The charges were dropped for insufficient evidence.[26]

SUSPECTS IN THE UK?

34. We also asked for information on the number of suspected perpetrators of genocide, war crimes and crimes against humanity present in the UK who cannot be prosecuted. In its memorandum, the Government said it could not estimate the number of suspects living in the UK but said that in the four years between 2004 and 2008, there were 138 adverse immigration decisions (such as refusal of entry, indefinite leave to remain and naturalisation, and exclusions from refugee protection), and that "these individuals may no longer be in the UK."[27] In the same four years, 22 cases were referred to the Metropolitan Police.[28] In its memoranda, Aegis quoted figures provided to Parliament: the UK Borders Agency (UKBA) has investigated 1,863 individuals in the UK for genocide, war crimes or crimes against humanity.[29] Aegis also noted that there may be more suspects living in the UK, given that some will have entered before 2004.[30] Aegis has recently argued that "there are significant numbers of suspected war criminals and genocidaires who are either in the UK or who have visited this country" and published details of suspects from Rwanda, Liberia, Sierra Leone, Sri Lanka, Iraq, Zimbabwe, Sudan, Congo, Afghanistan and the former Yugoslavia.[31]

Examining the 'impunity gaps'

35. We examined the two main anomalies in UK law, what they mean in practice, and whether there is any justification for retaining the inconsistencies.

PRESENCE VERSUS RESIDENCE

36. As discussed above, the first of the two main anomalies is the difference between the 'presence' requirement to prosecute suspects of torture, hostage-taking and war crimes in international armed conflicts, and the 'residence' requirement to prosecute suspects of genocide, war crimes in internal armed conflicts or crimes against humanity.[32] A further complicating factor is that the definition of 'resident' is unclear. The ICC Act 2001 gives a rather unhelpful definition of a UK resident as "a person who is resident in the United Kingdom."[33] Sir Ken Macdonald QC told the Committee that "there is no settled definition of what residency amounts to in the English law, and residency means different things in different statutes."[34] The Government has said:

37. In its written memorandum, the Government insisted that the 'residence' requirement does not restrict prosecution in practice:

We do not know of any individuals against whom there is a prima facie case to answer for war crimes, genocide or crimes against humanity, but who have not been able to be prosecuted because they are not resident in the UK. It is very unlikely such a case would occur.

…

38. However, witnesses expressed concern that there are several groups of suspects who benefit from the impunity afforded them by the 'residence' requirement and who might specifically benefit from the 'flexibility' of the 'residence' requirement. The first category of suspects falling within the 'practical gap' is clear - the short term visitors, such as those in transit through or on holiday in the UK. In oral evidence, Mr Donovan named Felicien Kabuga - an alleged financier of the Rwandan genocide - as one suspect who is known to have travelled through the UK.[37] Additional suspects who have visited the UK are detailed in Aegis' recent report.[38] Several of those identified by Aegis would not be liable to prosecution because they are not UK residents.

39. The second category are those suspects who are in the UK for longer periods.[39] Sir Ken Macdonald told us:

40. Mr Donovan informed the Committee that there are immigration files of people in the UK who are believed to have committed war crimes and crimes against humanity but, "for good human rights reasons, they cannot be removed back to their country. Those include Afghan warlords, Somali warlords, a driver for an assassination squad in Sri Lanka - these types of cases."[41] While the Government said asylum seekers awaiting decisions 'might' be considered resident, they did not comment on those who have had their asylum claims rejected because they are suspected to have committed international crimes (and are therefore not to be treated as refugees under the Refugee Convention). The Government has said 'short-term students' would not be considered 'resident', but has provided no definition of 'short-term'.[42]

41. What the Government has termed 'flexibility' in terms of who counts as a resident of the UK, would be more accurately regarded as a combination of legal loopholes and uncertainty. In our view, the residence requirement in the ICC Act 2001 creates practical impunity gaps in UK law.

Rectifying the 'residence' impunity gap

42. The evidence we received was overwhelmingly in favour of closing the impunity gap based on 'residence'. Mr Machover said: "distinguishing on some arbitrary basis of residence or presence seems wrong. If they are present here in the UK they should be prosecuted…"[43] Human Rights Watch believes the existing 'residence' requirement "weakens the UK's ability to pursue justice."[44]

43. Several of those giving evidence argued that it would be simple to rectify the gap in the law created by the 'residence' requirement by using the language of the US Genocide Accountability Act 2007.[45] That US Act allows prosecution if "after the conduct required for the offence occurs, the alleged offender is brought into or found in the United States."[46] The same presence requirement is proposed in the US Crimes Against Humanity Act 2009 which was introduced in the Senate on 24 June 2009.

44. The former Director of Public Prosecutions, Sir Ken Macdonald QC, told the committee that this change in UK law would make a practical difference:

45. The Government has defended the 'residence' requirement, saying it believes it "offers the right balance" and that it does not result in 'safe-haven' for suspects "since [a suspect] cannot remain any length of time in the UK and cannot become resident here without risking prosecution."[48] In oral evidence, the Minister reiterated this defence: "people who are coming to the UK who are transitory in one form or another, are not simply seeking a safe haven."[49]

46. The Minister justified the difference between the presence requirement of torture and the more restrictive residence requirement for genocide on the grounds that "the international community has allowed for that level of jurisdiction around torture but not in respect of genocide."[50] This is incorrect - other witnesses were clear that the discussion is not about establishing universal jurisdiction: they do not advocate assumption of universal jurisdiction for genocide, crimes against humanity and war crimes in civil wars, although even that level of jurisdiction is not prohibited in international law. A presence requirement would simply represent broader extra-territorial jurisdiction, not universal jurisdiction.[51] Universal jurisdiction would allow prosecution of anyone, anywhere in the world, for crimes committed anywhere in the world. This is not proposed for the UK.[52]

47. The Minister also said that the residence requirement "is what Parliament decided in 2001."[53] In the debates regarding the ICC Act 2001 the primary issue being considered was whether the UK should have extra-territorial jurisdiction over the relevant crimes. Initially, the Bill had a citizenship requirement; this was amended to a residence requirement after the restrictiveness of the original proposal was raised in the House of Lords.[54]

48. Since the Minister gave oral evidence, the Government has announced it will retain the residence requirement under the ICC Act 2001 but is "exploring the possibility of providing more certainty as to who may (or may not) be considered to be a UK resident."[55] The Government said the reason for retaining the residence test is that: "Our aim is not to become a policeman for the world."[56]

49. There was significant discussion on this issue in the House of Lords second reading debate on the Coroners and Justice Bill on the day of the Government's announcement. The overwhelming sentiment was commendation for the Government's recognition of the need for reform but also significant concern that the term 'resident' should be broad enough to capture all visitors. For example, Lord Carlile said:

We would not be closing the loophole effectively if they were allowed to go shopping in Knightsbridge for a couple of days but were not liable to be arrested and tried here. It would continue the poor reputation that the United Kingdom has had as safe haven were there to be loopholes of that kind.

50. In responding to the Government's announcement, the Aegis Trust have said the retention of the residence test could potentially allow some legal loopholes to remain. Aegis argued that the Government's "unstated reasons" for retaining the residence test are: "firstly, fear of offending key allies if their personnel are investigated when visiting the UK; and, secondly, worries about the cost of monitoring large numbers of people travelling through British airports." Aegis continued: "The answer is to trust the Police, Crown Prosecution Service and Attorney-General to use their discretion wisely, and to draw up criteria for the prioritisation of cases."[58] Aegis noted Canada's experience of a presence test, backdated to 1945 for crimes against humanity, as an example of how "robust laws can coexist with limited budgets and foreign policy concerns."[59]

51. We welcome the Government's recognition that the existing law should be reviewed. Revisiting the definition of 'resident' at least has the potential to address the uncertainty in the current law. We recommend that 'residence' be replaced with a broadly defined 'presence' test so as to send the strongest possible message to international criminals that they are not welcome in the UK, whether to live here, shop, study, or visit. We recommend that the Government consider adopting the presence requirement in the US Genocide Accountability Act of 2007.

RETROSPECTION

52. The second 'impunity gap' relates to the dates of the alleged crimes. Genocide, crimes against humanity and war crimes in civil wars were the last of the international crimes to be given extra-territorial jurisdiction in UK law, and they were not made retrospective, leaving significant differences in the dates from when those crimes can be prosecuted, and the dates when torture, hostage-taking and war crimes in international armed conflicts can be prosecuted (2001 compared with 1988, 1982 and 1957).

53. This impunity gap has been highlighted recently by the case of four Rwandan men alleged to have participated in genocide, who are now living in the UK. Rwanda has requested their extradition to face trial, based on case files of evidence. The UK courts found there was sufficient evidence to extradite the men to face trial, but the High Court subsequently refused extradition on human rights grounds - the Court found that their was a real risk the suspects would not receive a fair trial in Rwanda. To extradite them would therefore breach the suspects' rights under article 6 of the ECHR.[60] The International Criminal Tribunal for Rwanda has refused to transfer prisoners to Rwanda for trial for the same reason, as have other domestic jurisdictions in Europe.[61] It was reported on 9 July that Sweden will extradite a suspect to Rwanda to face trial.[62]

54. The Crown Prosecution Service (CPS) has determined that the crimes fall into the category of genocide and therefore there is no jurisdiction to prosecute the four suspects in the UK because the crimes were committed abroad, before 2001.[63] Had the crimes also fitted the definition of torture, they could have been prosecuted here under the Criminal Justice Act 1988. The men themselves are reported to have said they want a trial in the UK to clear their name.[64] The lack of jurisdiction is therefore problematic from the perspective of both victims and suspects.

55. We inquired into the remaining options for prosecuting the Rwandan suspects. In oral evidence, the Minister and her officials emphasised that the Government is "heavily involved in trying to build capacity in Rwanda" and is doing what it can "to try and ensure that [the Rwandan system of justice] is up to the full standards we talked about."[65] The Minister reiterated that the country where the alleged crimes occurred should be the "first port of call" for a prosecution and noted that Rwanda could request extradition again at a later date if its criminal justice system were reformed.[66]

56. Our other witnesses agreed with the Government that, ideally, prosecution should take place in the country where the crimes occurred, "both for reasons of telling the truth about what happened to the crime and access to justice for the victims."[67] However, they also noted that sometimes this is not possible, as in this case. Mr Donovan explained that the next option would be to find another court to prosecute, such as the ICC, but noted the ICC's limitations:

57. Mr Donovan continued: "Then of course you have the problem of just skipping over the border, perhaps to the UK."[69] Sir Ken Macdonald explained the problem where suspects have made it to the UK:

This is exactly what has happened in the case of the four Rwandans. This case "really shows the gap in the law in a very stark way."[71] In such cases, noted Mr Donovan, "you rely on extra-territorial jurisdiction to fill in some of those gaps."[72]

58. Specifically, we were told that the options regarding the four Rwandan cases were now limited. They could not be sent to the special Tribunal (International Criminal Tribunal for Rwanda (ICTR)) because it has been wound up due to a lack of resources; the ICC in the Hague only has jurisdiction from 2002 onwards. The UN Security Council "having wound up the [ICTR], could refer cases back to the ICC, but that would take a Security Council resolution."[73] Alternatively, Spain could seek extradition under its universal jurisdiction. Sir Ken Macdonald felt that "we probably should not be relying on the Spanish to sort out our problems for us in this area."[74]

Remedying the impunity gap regarding retrospection

59. We received evidence explaining the ways in which alternative dates for retrospection could be applied to the different crimes.[75] In oral evidence, Mr Donovan said Aegis preferred the approach taken in the Hetherington-Chalmers report on Nazi war crimes - the date of retrospective application should be the date from when a "crime is a crime in international customary law."[76] This would mean retrospective application as follows:

1948 for genocide, being the date of the Genocide Convention.
1991 for crimes against humanity, being the date that the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted, recognising that crimes against humanity are "beyond doubt part of customary law."
1949 for all war crimes contained in the Geneva Conventions of 1949 (and other dates for specific war crimes as they became international crimes, for example, 1907 for certain of the Hague Conventions, 1977 for the additional protocols, 1998 for those crimes considered to have been first recognised in the Rome Statute.)

60. Until the recent announcement, the Government had resisted all proposals to broaden the UK's jurisdiction over the crimes under the ICC Act 2001 by making it retrospective. The justification for the difference between crimes under the ICC Act 2001 and the crimes of torture, hostage-taking and war crimes in international armed conflicts centred on what the UK is obliged to do under international law:

61. In his submission to the Committee, John R.W.D. Jones, barrister, argued that the ICC Act 2001 "gives the narrowest, most conservative construction of the UK's obligations under the Rome Statute, confining the UK's jurisdiction…"[78] In written evidence, Sir Ken Macdonald QC said that although the UK has not technically failed to implement an international treaty in this regard, there are strong arguments in favour of wider UK jurisdiction over crimes under the ICC Act 2001 on the basis of customary international law.[79] In oral evidence, Mr Donovan, Mr Machover and Sir Ken Macdonald QC all argued not for full universal jurisdiction, but for wider extra-territorial jurisdiction for genocide, crimes against humanity and war crimes in internal armed conflicts.[80] The point made by the witnesses was that the Government is permitted to establish broader jurisdiction in implementing the relevant international law. It is not necessarily restricted by what is mandated.[81]

62. Sir Ken Macdonald QC argued that the principle of 'no crime or punishment without existing law' - on which the presumption against retroactive criminal law is based - was not to be used as a technicality to prevent clearly criminal behaviour being prosecuted:

63. In its written memorandum, the Government resolutely defended the non-retrospectivity of the ICC Act 2001. In October 2008, the Government said:

64. In February 2009, the Government reiterated concerns about different dates for different crimes, arguing that they might confuse prosecutors, and that :

Sir Ken Macdonald told the Committee different dates of jurisdiction would pose no problem to prosecutors.[85]

65. The Minister re-stated in oral evidence that Parliament decided against retrospection in 2001.[86] We asked the Minister and her officials to provide us with Hansard references for the debate which the Government has referred to as a reason why the ICC Act 2001 should not be made retrospective. None of the references provided are of a substantive debate on the issue of retrospection.[87] We can see no evidence that Parliament substantively debated retrospective criminalisation of genocide, crimes against humanity and war crimes in internal armed conflicts in the 2001 debate, as the Government has asserted.

66. On 7 July 2009, the Government announced that the ICC Act 2001 would be given retrospective effect from 1 January 1991, through amendments to the Coroners and Justice Bill at Report stage in the House of Lords in the autumn.[88] According to the Ministerial Statement, all three offences will have the same date of retrospective application - 1 January 1991. This is the date from when the last of the three crimes was recognised in international law (crimes against humanity). The retrospective application will enable prosecution of offences committed in Rwanda in 1994. It will cover much of the Sri Lankan conflict and a number of others. It will not, however, cover the Cambodian genocide.

67. We welcome the Government's announcement to apply retrospection to the crimes of genocide, crimes against humanity and war crimes in internal armed conflicts. In agreeing to make the ICC Act 2001 retrospective, the Government has accepted that the international community does not need to have mandated that states establish extra-territorial jurisdiction for the UK to implement it. However, we fail to understand the justification for using 1991 as the date from when extra-territorial jurisdiction should apply to genocide and war crimes; it is a date only relevant to crimes against humanity. In principle, the aim should be to establish jurisdiction as far back as is legally possible for each offence. It is not necessary that the dates for each offence be the same - it is justifiable for the dates to be different on the grounds that some offences date back further than others in international law. We recommend that the Government use the dates when the relevant crimes were internationally recognised, and establish retrospection accordingly. We recommend the law be amended to provide extra-territorial jurisdiction over genocide from 1948 and war crimes in internal armed conflicts from 1949. We recognise that there may be complexity in defining the relevant dates for types of war crimes but this should not be overstated. We do not consider this to be an exercise beyond the capacity of the UK Government, or beyond the understanding of the public.

Costs and practical considerations

68. The Government told the Committee that war crimes cases can be "very protracted and resource intensive."[89] The memorandum also said that any increase in police workload will mean that "resources are spread more thinly and that other cases will need to be given correspondingly less priority and resources…there is little likelihood that any additional resources will be readily available and reallocation of existing resources would need to be robustly justified."[90]

69. In an open letter to the Government, Redress and African Rights suggested that the issue of resources was the primary reason for the Government's reluctance to amend the law. They quote with favour Lord Carlile: "These are, after all, cases of mass murders in some cases, of war crimes in other cases, and therefore the resourcing [of a specialised unit] is very well justified on the merits."[91]

70. In written evidence, Aegis told the Committee that a special unit within the Metropolitan Police and CPS would be needed to investigate and prosecute these crimes, noting that a specialist unit was established following the War Crimes Act 1991 but was disbanded in the late 1990s.[92] Sir Ken Macdonald QC also noted the need for a specialist unit and suggested that the UK could learn from experience in Canada, the Netherlands and the Scandinavian countries, where specialist units operate.[93]

71. The Government highlighted practical problems with prosecuting genocide and related offences, such as collecting evidence overseas, finding and identifying witnesses from war zones who were willing to testify, and language barriers.[94] In oral evidence, Mr Donovan said of the practical difficulties:

72. Sir Ken Macdonald QC said:

73. The Tamils Against Genocide said in their memorandum: "Whilst [there could be] little by way of prosecution owing to evidential difficulties, this is a lesser problem than an absence of prosecution owing to the legal incapacity to instigate it."[97] We agree.

74. After being questioned in oral evidence, the Minister seemed to acknowledge this point:

75. We take the Government's point that prosecutions for international crimes are likely to be expensive, complex and time-consuming. However, as the Government have now acknowledged, this is a secondary concern - it is far worse to be incapable of prosecution where the evidence would otherwise support it. Practical difficulties and potential costs cannot stand as a reason for the UK not having jurisdiction to prosecute the rare cases that do satisfy the evidentiary requirements.

76. We recommend that the Government re-establish a specialist war crimes unit and that they give it resources commensurate with the seriousness of the crimes they need to investigate and the importance of leading the world in bringing international criminals to justice.

5 'Universal jurisdiction' is the international legal principle whereby a state claims the right to prosecute crimes committed outside its boundaries, regardless of the nationality of the accused or their state of residence. In international law, there need not be any connection with the prosecuting state in order to prosecute certain serious crimes which are considered crimes against all of humanity. A state with full universal jurisdiction over international crimes can request extradition of a suspect from another state even if there is no connection between the suspect (or crime) and the prosecuting state. Back

6 In this report, the term 'extra-territorial jurisdiction' is used to refer to the principle whereby a state can prosecute its nationals, residents or in certain cases suspects found within its territory for crimes committed abroad; it does not include jurisdiction to apply to another country to have a suspect extradited if there no connection with the prosecuting state. Back

7 Section 134, Criminal Justice Act 1988. Back

8 Taking of Hostages Act 1982. Back

9 Article 5. Back

10 Geneva Conventions Act 1957. Back

11 Article 49 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Article 50 of the Geneva Convention for the Amelioration of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Article 129 of the Geneva Convention Relative to the Treatment of Prisoners of War; Article 146 of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War. Back

12 The Rome Statute came into force on 1 July 2002, after 60 states had ratified it. It does not explicitly oblige states to establish universal or extra-territorial jurisdiction over war crimes in internal armed conflicts, genocide and crimes against humanity, but it has been interpreted as requiring the expansion of extra-territorial jurisdiction by states, including the UK, over these international crimes so as to stop the ICC from exercising its 'supra-national' jurisdiction. Article 8 of the Rome Statute includes in the definition of 'war crimes' serious violations of common article 3 in conflicts 'not of an international character', "namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention of any other cause:

1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

2. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

3. Taking of hostages;

4. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable." Back