A step too far – a warning for Private Prosecutors
Previously we have described how, by the application of the principle of universal jurisdiction, certain offences, which can be broadly categorised as “war crimes”, can be prosecuted in the UK regardless of where they were committed and whether there is any nexus to the UK.
The offences falling into this category and which might be prosecuted in the UK are largely covered by three acts:
Geneva Conventions Act 1957 (“GCA”)
Section 1(1) of the GCA states:
“Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence”
The “scheduled conventions” cover:
(1) the amelioration of the condition of the wounded and sick in armed forces in the field / (2) wounded sick & shipwrecked members of armed forces at sea / (3) the treatment of the prisoners of war / (4) the protection of civilian persons in time of war. (The “first protocol” relates to the protection of victims of international armed conflicts).
The conventions and the first protocol apply from the beginning of any “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” (First Protocol, Articles 1 – 3(a)).
The conventions and first protocol cease to apply “in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter. These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment.” (First Protocol, Article 3(b)).
Under each convention is an Article (50, 51, 130 & 147 respectively) which sets out the “grave breaches” – acts such as:
wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages, and extensive destruction and appropriation of property
where those acts are “not justified by military necessity and carried out unlawfully and wantonly”.
Offences under the Geneva Convention are crimes of universal jurisdiction, meaning they can be tried anywhere, regardless of the nationality of the alleged offender, or where the alleged crimes were committed. In the UK, they are triable on indictment only, i.e. in the Crown Court. However the consent of the Attorney General must be sought before a prosecution is brought under the GCA. (GCA s1A(3)(a)).
A person convicted of an offence involving murder shall be sentenced as if he had committed the offence of murder in England & Wales. For all other offences the maximum sentence is 30 years imprisonment. (GCA s1A (5) & (6))
Criminal Justice Act 1988 (“CJA”)
Section 134 of the CJA provides for the offence of torture as follows:
(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties
Subsection (2) provides for an offence where a person “intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence” of a public official.
The offence can be committed “in the United Kingdom or elsewhere”, and “whatever [the accused’s] nationality”. As such it is an offence of universal jurisdiction.
The offence is triable only on indictment, and the maximum sentence is life imprisonment (CJA s134(6)). The Attorney General’s consent is required to prosecute (CJA s135).
International Criminal Court Act 2001 (“ICCA”)
This legislation incorporates the offences in the Rome Treaty of the ICC into our domestic law so that the UK is in a position to investigate and prosecute any ICC crimes committed in the UK or committed overseas by a UK national, a UK resident or a person subject to UK service jurisdiction.
Under s51(1) to the ICCA
“It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.”
The offences are defined at s50(1) and Schedule 8 Articles 6, 7 & 8.2 respectively.
Each offence covers a vast range of behaviours, but broadly can be summarised as follows:
“Genocide” is defined as a range of acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
A “crime against humanity” is a range of acts “intentionally causing great suffering, or serious injury to body or to mental or physical health, when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack.”
“War crimes” means “grave breaches of the Geneva Conventions”, “other serious violations of the laws and customs applicable in international armed conflict” and various other violations of the laws of armed conflict, whether of an international nature of otherwise (but excluding certain internal disturbances such as riots or isolated and sporadic acts of violence).
The offences are triable in the Crown Court only and the Attorney General’s consent is required to prosecute (ICCA s53(3)). Sentencing is the same as for GCA offences (see ICCA s53(3) and (6)).
Although, as previously noted, all of the above are offences that are rarely prosecuted in the UK, the ability to do so remains an important possibility both to the state as well as to private individuals and human rights organisations.
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