Universal jurisdiction and the refugee crisis

According to a recent article, despite the Home Office refusing 135 claims for British citizenship in the past three years because of suspected involvement in war crimes, the authorities failed to refer any of the cases to the police; nor were any the applicants referred for deportation, meaning that they remain at large in the UK.

Other countries have taken a different approach. In October 2016,  a Human Rights Watch publication on universal jurisdiction reported how it was being used to bring cases in Germany, France, Sweden, Switzerland and Norway, against refugees from Syria and Iraq for war crimes and related allegations.

Universal jurisdiction is a legal doctrine that allows national courts to prosecute those suspected of certain offences, regardless of where they occurred or the nationality of the victim or suspect. In the UK true universal jurisdiction applies to only a small number of crimes including grave breaches of the Geneva Convention (under the Geneva Conventions Act 1957) and torture (under the Criminal Justice Act 1988). A lesser forms of extended jurisdiction is created by the International Criminal Court Act 2001, which applies to UK nationals and residents suspected of the range of offences which may be prosecuted by the International Criminal Court.

Although the UK is no stranger to universal jurisdiction, it has prosecuted few cases under this legal pathway, as evidenced in our previous blog. The UK Crown Prosecution Service has prosecuted two persons: Faryadi Zardad, an Afghan warlord, who was convicted in 2005, and Colonel Kumar Lama, who was represented by Kingsley Napley and acquitted of torture charges in September 2016.

While universal jurisdiction provides the legal basis for bringing charges against individuals for these crimes, the ability to do so successfully is often affected by practical issues, such as the availability of evidence, which may be located in another jurisdiction.

In some countries, in order to best utilise resources, there is a legal requirement that there be a nexus with that country (such as the nationality of victim or suspect) in order to initiate an investigation or prosecution. However, the HRW report notes that even in Germany and Norway, two EU countries that have no requirement for such a nexus, investigations are generally only instigated where there is such a connection due to the practical difficulties.

Whilst the very large proportion of those seeking asylum from war torn countries will be innocent civilians, a small number may arrive having been involved as a participant in an armed conflict.  The recent influx of refugees, from Syria and Iraq in particular, has in some cases prompted a renewed impetus to prosecute individuals under the principle of universal jurisdiction. HRW gave the following examples:

Sweden

1.  Mohannad Droubi was a Swedish Resident since 2014, and was found guilty in February 2015 of torture as a war crime in Syria. He had a video on his Facebook account of him torturing a prisoner while a fighter in the Free Syrian Army. His 5 year sentence was increased to 8 years on retrial.
2.  A Syrian member of an armed group arrived in Sweden in 2013 and was arrested in March 2016. He is accused of killing seven Syrian soldiers in 2012 outside a combat situation in Idlib province. His trial is expected to begin this year (2017).
3.  A Syrian national was tried in February 2016 after a photo of him was uncovered on the internet in uniform standing on corpses wearing civilian clothes. The case was dismissed for lack of evidence.

Germany

1.  Police have reported initiating 13 investigations into Syria-related cases, and opening a structural investigation on Syria. This is a broad investigation without specific suspects aimed at gathering evidence available in Germany to facilitate future criminal proceedings before German or other courts.
2.  A Syrian national is detained on war crimes charges, is accused of kidnapping a UN observer in 2013.
3.  Another Syrian national is also detained on war crimes charges, suspected of being a rebel militia commander in Aleppo who is alleged to have supervised the torture of several prisoners, and personally tortured at least two.

France

A preliminary investigation has been opened into human rights abuses at government detention facilities based on photographic and witness evidence in their possession. The authorities are yet to decide if they have jurisdiction over these crimes in accordance with French law.

Norway

Authorities are reportedly investigating 20 Syrians from the Syrian armed forces and other armed groups.

The Netherlands

Officials have stated that in 2015 they identified 10 Syrians in the country suspected of grave international crimes who are under investigation.

Switzerland

A criminal investigation has been opened in August 2016 into war crimes in Syria.

Finland

1.  Two former Iraqi soldiers were convicted for desecrating the bodies of ISIS soldiers (sentenced 16 and 13 months). They had arrived in Finland at the end of 2015 and posted photos of themselves on Facebook with decapitated heads.
2.  Two ISIS members who arrived in Finland September 2015 were arrested for their involvement in the massacre of 11 unarmed Iraqi soldiers in Tikrit in June 2014.

The UK has the jurisdiction to bring criminal charges against those accused of war crimes, or crimes against humanity committed abroad. If the UK follows the trend set out in the HRW report, we may begin to see in UK courts similar prosecutions to those taking place elsewhere in Europe.

This blog was written by Jonathan Grimes