Rt Hon Jack Straw MP
Lord Chancellor and Secretary of State for Justice
102 Petty France
Dear Secretary of State,
We write to express concern over shortcomings in the International Criminal Court Act (ICCA) of 2001, particularly with respect to jurisdiction over the crime of genocide. We urge the government of the United Kingdom to amend the ICCA in order to ensure that the world's worst crimes, including crimes of genocide, may be prosecuted in UK domestic courts and to prevent the UK from becoming a refuge for the perpetrators of these heinous crimes.
On April 8, 2009, the High Court of Justice denied the extradition to Rwanda of four Rwandans accused of participation in the 1994 genocide. The Court made extensive reference to the submissions of Human Rights Watch to the International Criminal Tribunal for Rwanda (ICTR) that accused persons cannot be fairly tried in Rwanda and to our report on the Rwandan judicial system released last year. However, instead of then recommending their prosecution in the UK, the court released all four suspects.
Under the ICCA, jurisdiction for genocide is limited to crimes occurring after June 2001, when the law came into force, where the crime is committed in England, Wales, Northern Ireland or Scotland (in the case of the ICC (Scotland) Act), or where it is committed overseas and the alleged perpetrator is a UK national or resident or subject to UK service jurisdiction. Since the offences in question were committed outside the UK prior to June 2001 and the suspects are not UK citizens, residents or service personnel, it appears they cannot currently be prosecuted for genocide in the United Kingdom.
Human Rights Watch is deeply concerned by this outcome. While we opposed extradition of the four men to Rwanda, beginning in October 2007 we publicly called on the UK to prosecute them for war crimes or torture (a copy of our press release is attached). We remain strongly of that view.
We also called on the UK to amend its law and, consistent with international law, allow for prosecution of the crime of genocide regardless of where or when it was perpetrated.
We believe it is imperative for the United Kingdom to amend the ICCA as a matter of priority to close the impunity gap highlighted by the crimes alleged to have been committed by the four individuals released last month by the High Court as well as to ensure that crimes of genocide and other serious international crimes committed by others found in the UK are prosecuted. The law should be amended in at least three ways.
First, the law should allow for prosecutions for acts dating back to at least 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN General Assembly. The principle of non-retroactivity for criminal offenses does not prevent a crime from being prosecuted under national law so long as the conduct proscribed was criminal under international law at the time it occurred, as recognized in Article 7(2) of the European Convention on Human Rights and Article 15(2) of the International Covenant on Civil and Political Rights. The ICCA should be amended to provide for criminal liability where the conduct in question constituted an offense under either UK or international law at the time it took place.
Second, the universal jurisdiction provisions of the ICCA should be cast as broadly as possible. The current law requiring the accused to be a UK national or resident or subject to UK service jurisdiction in England or Wales, or the crimes to have taken place in England, Wales, Northern Ireland or Scotland (in the case of the ICC (Scotland) Act), is too restrictive and weakens the UK's ability to pursue justice for such heinous crimes. We recommend providing jurisdiction over all persons suspected of ICCA offenses, wherever committed and regardless of the nationality or place of residence of the alleged perpetrator or victim.
In the United States, for example, the 2007 Genocide Accountability Act provides domestic courts with jurisdiction over crimes committed (i) in the US; (ii) by US nationals, US residents or stateless persons living in the US; or (iii) by persons brought into or found in the US after the alleged crime which occurred outside of the US. A similar provision would enable the UK to ensure that those who have committed grave crimes abroad do not escape justice by traveling to or residing in the United Kingdom.
Finally, the ICCA should be amended to remove the requirement under article 53(3) that the Attorney General consent to the prosecution. Allowing a government official to determine whether or not to prosecute suspects of serious international crimes jeopardizes the independence of the prosecutorial process. As you are fully aware, proposals to remove or severely curtail the Attorney General's role in prosecutions have been on the agenda since Gordon Brown became Prime Minister, as part of the new constitutional settlement, but with little actual change in the Attorney's role to date.
We understand that the Joint Committee on Human Rights is currently examining UK legislation relating to genocide, war crimes, and crimes against humanity. We seek your urgent attention to the amendments outlined in this letter, as well as careful examination of other legal reforms required to fully empower UK courts to exercise effective universal jurisdiction over these crimes.
Thank you for your time and attention to these important matters.