When does a regulator pay costs? The Court of Appeal has spoken
In previous legal updates 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 purpose of this update is to look at the cases that have been prosecuted to date in the UK.
The offences falling into this category and which might be prosecuted in the UK are covered by four acts: grave breaches of the Geneva Conventions contrary to the Geneva Conventions Act 1957; torture contrary to s.134 Criminal Justice Act 1988 (“CJA1988”); offences contrary to the War Crimes Act 1991; and offences contrary to the International Criminal Court Act 2001, which implemented into English law offences criminalised by the Rome Statute, including genocide, various forms of crimes against humanity and war crimes.
In April 1999, Anthony Sawoniuk was convicted under the War Crimes Act 1991 of two counts of murder which occurred in 1942 in Nazi-occupied territories. He was the first and will probably be the only person to be convicted under the UK’s War Crimes Act 1991. This prosecution is unique due to the Act’s limited scope: it only covers crimes committed during World War Two. Sawoniuk was sentenced to two life sentences and died in prison of natural causes aged 84.
Two persons have been charged under s.134 of the CJA 1988. The first involved Faryadi Zardad, an Afghan warlord, who was convicted in July 2005 and sentenced to 20 years in prison in relation to conspiracy to torture in relation to his conduct in Afghanistan in the 1990s. Neither the defendant nor his victims were British nationals and the witnesses lived outside the United Kingdom. At the initial trial, witness evidence from Afghanistan had been given via video link. The jury were unable to agree a verdict, but upon re-trial arrangements were made for witnesses to travel to the United Kingdom to give evidence in person and he was subsequently convicted.
The second CJA 1988 trial is the on-going case of Colonel Kumar Lama from Nepal (for whom this firm acts). In 2013, he was charged with two counts of torture allegedly committed in 2005 during his country’s civil war. As with Zardad, neither the defendant nor the complainants are British nationals. The case continues and a trial is due to take place in June 2016.
Corporal Donald Payne was the first member of the British armed forces to be convicted of a war crime under the provisions of the International Criminal Court Act 2001 when he pleaded guilty in 2006 to a charge of inhumane treatment in relation to detainees in Iraq. He was imprisoned for one year and was discharged from the army.
To date, there have been no cases under the Geneva Conventions Act 1957.
Co-authored by Emily Elliott
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