Guyana, England, Nigeria and back again: A story from the Windrush Generation
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:
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.
Authorities are reportedly investigating 20 Syrians from the Syrian armed forces and other armed groups.
Officials have stated that in 2015 they identified 10 Syrians in the country suspected of grave international crimes who are under investigation.
A criminal investigation has been opened in August 2016 into war crimes in Syria.
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 and Sophia Kerridge.
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