A political measure of accountability for genocide will allow perpetrators to escape justice
At present, if you are alleged to have committed genocide, crimes against humanity or war crimes before 2001 and you are living in the UK, you cannot be investigated or prosecuted in the UK – or face deportation, extradition, or transfer to the International Criminal Court.
Now this ‘impunity gap’ will be pushed back – but only by a decade. Under the Justice Secretary’s proposed 1991 cut-off date to the Coroners and Justice Bill – currently before the House of Lords – individuals accused of international crimes will continue to evade investigation in the UK.
The government has the opportunity to close the jurisdictional gap by choosing a date in line with the Geneva Conventions of 1948 and 1949. Instead, the Straw amendment – which will be tabled to the bill this autumn, at its Report Stage in the House of Lords – chooses to leave Britain a safe haven for scores of international criminals alleged to have committed crimes prior to 1991.
The International Criminal Court, which looks forward from 2001 in its prosecutions, has the capacity has to hold only a few trials each year: transfer to the International Criminal Court is often an unrealistic option.
Peers: “no real logic” to Straw amendment
Three peers involved in this aspect of the ongoing Coroners and Justice Debates – QCs Lord Anthony Lester and Lord Alex Carlile, and Baroness Frances D’Souza – tell me they see “no real logic” to the Straw amendment, if there is to be “no hiding place for war criminals in the UK”.
Lord Lester QC, one of the country’s leading human rights lawyers – who last November resigned as the government’s independent advisor on constitutional reform, said: “If the government is willing to extend jurisdiction back to 1991, there is no reason why it should not be extended back further for those offences which became a crime under UK law prior to that date”.
“Although it may be neat to have one date for all offences, this is simply not justifiable if it could result in an impunity gap. Jurisdiction for other genocide and certain war crimes could and should be extended back to 1948 and 1949 respectively”.
Lord Carlile QC, the government’s independent reviewer of terrorism legislation, who was a leading proponent in the House of Commons of the War Crimes Act, and a founding officer of the All-Party War Crimes Group, said: “Mr. Straw has come a long way in accepting the need to change the law. I have no doubt that he supports the changes proposed. I hope Mr. Straw will provide full consistency to the government’s changed position.”
Baroness D’Souza, a former director of the Redress Trust, an NGO which focuses on reparation to torture survivors, said: “Crimes such as genocide are so severe and so heinous that we cannot impose artificial time limits that allow suspects to evade justice.”
Political measure of accountability for genocide
The move to push the cut-off date back arbitrarily to 1991 is itself regarded a reactive measure to the political discomfort caused by the recent successful appeals in the High Court of four Rwandan génocidaires.
This April, the High Court ruled against the extradition orders of former Home Secretary Jacqui Smith, that the four could not be prosecuted in the UK. The court did not question the quality and quantity of the evidence, but came to its view simply because the alleged crimes were committed in 1994, before the existing 2001 cut-off date.
While the Straw amendment may bring the Rwandans to justice, it may also prove the last remaining opportunity to provide courts with the stronger universal jurisdiction that is surely needed – either by amending the International Criminal Court Act (ICCA) 2001, or passing a new Genocide Act.
If this opportunity for reform is squandered and the Straw amendment accepted, UK residents who participated in organized atrocities in the 1980s and 1970s would evade prosecution: some by a margin of a few years.
UK Border Agency statistics indicate the same will be the case for suspects ‘present’ in the UK, either before or after Straw’s proposed 1991 cut-off date. Many of those ‘present’ will have been refused residency status, but cannot be extradited for human rights reasons. Baroness D’Souza indicted in the Coroners and Justice debates: “There are at present perhaps up to 100 people suspected of such serious crimes currently in the UK”.
A report now published by Parliament’s Joint Committee on Human Rights (JCHR), ‘Closing the Impunity Gap’, reinforces the point: ‘The Government has chosen not to implement’ to the “full extent possible” international conventions which “allow and in some cases oblige the Government to give our courts criminal jurisdiction over the world’s most heinous crimes”.
The Ministry of Justice defends Straw’s 1991 cut-off date with purely procedural and institutional logic: “The date is a significant and symbolic one in terms of the prosecution of individuals for offences of genocide, war crimes and crimes against humanity. It is the date from which the International Criminal Tribunal for the former Yugoslavia was given jurisdiction to prosecute these three types of offences by the Untied Nations Security Council”.
“It is an appropriate milestone in the prosecution of international crimes, and would allow us to have a single date for all the categories of crimes we are covering.”
“Moral logic” of an impunity gap?
As Sir Ken Macdonald QC, former Director of Public Prosecutions, questions, asks: where is the “moral logic” of any impunity gap? Speaking almost a year before the Straw amendment, on the sixtieth anniversary of the Genocide Convention, he asked: “How can it be right, let’s say, a Zimbabwean resident in the UK and suspected of war crimes since 2001 can be prosecuted, but a Cambodian living in the UK suspected of involvement in the genocide in the 1970s cannot?”
The same moral vacuum will apply if the 2001 date is moved back to 1991. Scores will evade investigation by Counter-Terrorism Command, the unit in the Metropolitan Police responsible for investigating war crimes suspects.
They will include suspects from the 1982-87 Matabeland Conflict in Robert Mugabe’s Zimbabwe, and those participant in atrocities in Equatorial Guinea, dubbed the ‘Auschwitz of Africa’, from 1968 until the 1979 overthrow of its president, Francisco Macias Ngeuma.
“Crimes against humanity were committed by Mugabe’s army in the 1980s in Matabeleland when the rival political party of Joshua Nkomo was effectively being destroyed. Thousands of civilians were killed and tortured”, says Kevin Laue, Legal Advisor at the Redress Trust and Zimbabwe specialist. He asks: “Should those responsible be allowed to come here and escape prosecution for their crimes?
Other genocides, crimes against humanity and war crimes from the 1980s and 1970s, which will not be covered by Straw’s cut-off date, include:
- The 1988 Helmet Massacre in Brazil
- The 1986-88 campaign against Iraqi Kurds
- The 1979-89 Soviet war in Afghanistan
- The 1976-83 ‘Dirty War’ in Buenos Aries
- The 1975-99 East Timor genocide
- The 1972 mass-killings of Hutu by the Tutsi army in Burundi
- The 1971 Bangladesh genocide
Nick Donovan, Head of Campaigns at the Aegis Trust, which successfully campaigned to bring the cut-off date in line with the War Crimes Act 1991, agrees that “If there are suspects here who are alleged to have committed war crimes before 1991, then the government should review these cases urgently before it finalizes its planned reforms.”
1971 Bangladesh genocide: three UK resident suspects
The Bangladesh episode, one of the most distant in time, provides a vivid example of the issues involved.
There are three men resident in the UK since the 1970s suspected of direct criminal liability for war crimes committed in the 1971 Bangladesh genocide. Several files of information held by a UK source support the allegations.
The three are currently London-based, and alleged to have been leading figures in a paramilitary death-squad complicit in the killing of 3 million and systematic rape of up to 400,000 in the closing days of Bangladesh’s War of Liberation against West Pakistan.
Testimony this year by a former activist of a political grouping indicted in the 1990s for war crimes alleges one ‘infamous collaborator’ – who absconded to London in 1971 – was ‘Operation-in-charge’ for the drawing up of lists and killing hundreds of members of the Bengali intelligentsia.
There has been some difficulty in clarifying precisely when the ‘civil war’ between East and West Pakistan graduated into an international armed conflict, which provides a lacuna in domestic law that inhibits successful prosecutions. While against international law to commit war crimes in ‘civil wars’ from 1949, international law does not expressly require states establish ‘extra-territorial’ jurisdiction over war crimes in civil wars.
But with a mandate to pursue war crimes suspects after years of military rule, the recently elected Awami League Bangladesh government may in time call for extradition of UK-resident suspects. It is at present developing its International Crimes (Tribunals) (Amendment) Act 2009, and seeking cooperation from the international community in the provision of evidence.
Given absence of internationally recognized fair trial standards in the country, any such call for extradition may cause embarrassment to the UK government of the kind that occurred with the Rwandans in the High Court this April.
Sir Ken McDonald QC is stated in the JCHR’s report explaining the predicament where suspects have made it into the UK: “Often these offences take place in parts of the world where there are no developed justice systems or where malpractice on the part of law enforcement authorities is endemic. It is always likely therefore that the High Court will refuse to sanction the extradition of people like these, which creates a serious problem for us.”
Those calling for the trial in the UK of the three UK residents alleged with involvement in the 1971 Bangladesh genocide are doing so under the jurisdiction of the 1957 Geneva Convention and under the 1988 Criminal Justice Act. This would be a necessity, if the UK were not to remain a safe haven.
Though the Bangladesh Awami League government have developed their International Crimes (Tribunals) (Amendment) Act 2009, international law specialists say the Act still fails to comply with international norms.
Successive Bangladeshi governments have yet failed to develop an extradition treaty with Britain. The Awami League government has yet to appoint the independent authority to investigate the alleged war crimes. It will then need to appoint prosecutors, and finally, establish its court. Many believe the Awami League will fail to handle the process in a way that will have international credibility.
The Home Office said: “We are determined to ensure that the UK does not become a safe haven for war criminals or those who have committed crimes against humanity or genocide. Any suggestion that someone applying to enter or remain in the UK has been involved in war crimes is taken extremely seriously and is referred to specialist caseworkers”.
“We do not give refugee status to war criminals and our aim is to remove such people as quickly as possible.”
By the Home Office’s own logic, it would not seem unreasonable to admit proper jurisdictional facility for investigation of UK-resident suspects.
Another loophole: the ‘residence test’
The ‘residence test’ has itself a circular definition in domestic law: ‘a ‘United Kingdom resident’ means a person who is resident in the United Kingdom’.
While the offences of hostage-taking and torture will continue to be prosecutable in the UK without requiring ‘residence’, the Straw amendment will exempt non-residents from prosecution, and fail to deter war crimes suspects from visiting Britain.
Burmese or Sudanese visitors suspected of crimes against humanity, even of acts committed after 2001, could evade arrest and trial: they are not UK-residents.
Suspects who have been ‘present’ in the UK since the 1990s but not ‘resident’ include Félicien Kabuga, an alleged financier of the Rwandan genocide, and Charles Taylor Jr., former head of the Anti-Terrorist Unit in Liberia, recently sentenced to 97 years in the U.S. for torture.
By contrast, it is a crime in the US for anyone ‘present’ to commit, or to attempt to conspire to commit, torture abroad. The JCHR report recommends the government consider adopting the presence requirement in the 2007 U.S. Genocide Accountability Act.
Lord Carlile QC put it forcefully in the Coroners and Justice debates: “We would not be closing the loophole effectively if [suspects] 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 a safe haven were there to be loopholes of that kind.”
The JCHR’s report rightly expresses concern that the existing ‘impunity gaps’ created by the International Criminal Court Act 2001 has ‘left the UK out of step with international law’.
The UK trails other countries such as Switzerland, Belgium, Finland, the Netherlands and Norway, ‘who have prosecuted suspects, or investigated suspects with a view to domestic prosecution, after their courts also refused to extradite to Rwanda’, the JCHR report states.
With so many apparently blanket regulations being imposed on UK’s millions of citizens for often tendentious reasons, it is extraordinary that in the case of mass international crimes the government should be so determined to cut short the arm of justice.
There is no reason why the Justice Secretary should not finally close the net on impunity for war crimes, and choose a date in line with the 1948 and 1949 Geneva Conventions.