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UK Law on Genocide (And Related Crimes) and Redress for Torture Victims

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UK Law on Genocide (And Related Crimes) and Redress for Torture Victims House of Lords House of Commons Joint Committee on Human Rights Closing the Impunity Gap: UK law on genocide (and related crimes) and redress for torture victims Twenty–fourth Report of Session 2008–09 Report, together with formal minutes and oral and written evidence Ordered by the House of Lords to be printed 21 July 2009 Ordered by the House of Commons to be printed 21 July 2009 HL Paper 153 HC 553 Published on 11 August 2009 by authority of the House of Commons London: The Stationery Office Limited £0.00 Joint Committee on Human Rights The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House. Current membership HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness John Austin MP (Labour, Erith & Thamesmead) Lord Dubs Mr Andrew Dismore MP (Labour, Hendon) (Chairman) Lord Lester of Herne Hill Dr Evan Harris MP (Liberal Democrat, Oxford West & Lord Morris of Handsworth OJ Abingdon) The Earl of Onslow Mr Virendra Sharma MP (Labour, Ealing, Southall) Baroness Prashar Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills) Mr Edward Timpson MP (Conservative, Crewe & Nantwich) Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman. Publications The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. Current Staff The current staff of the Committee are: Mark Egan (Commons Clerk), Rebecca Neal (Lords Clerk), Murray Hunt (Legal Adviser), Angela Patrick and Joanne Sawyer (Assistant Legal Advisers), James Clarke (Senior Committee Assistant), Emily Gregory and John Porter (Committee Assistants), Joanna Griffin (Lords Committee Assistant) and Keith Pryke (Office Support Assistant). Contacts All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee’s e-mail address is [email protected] Closing the Impunity Gap: UK law on genocide (and related crimes) and redress for torture victims 1 Contents Report Page Summary 3 1 Introduction 5 Background 5 Our inquiry 6 Structure of our Report 7 2 Genocide and related crimes 8 The existing law 8 What do the inconsistencies mean in practice? 11 Prosecutions in the UK 12 Suspects in the UK? 13 Examining the ‘impunity gaps’ 13 Presence versus residence 13 Retrospection 17 Costs and practical considerations 22 3 Reparations for torture victims 24 The existing law 24 Other jurisdictions 25 What does the current law mean in practice? 25 The Torture (Damages) Bill – law reform to provide access to reparations 26 Practical concerns 29 4 Conclusions 31 Recommendations 32 Formal Minutes 34 Witnesses 35 List of written evidence 35 List of Reports from the Committee during the current Parliament 36 Closing the Impunity Gap: UK law on genocide (and related crimes) and redress for torture victims 3 Summary International conventions allow and in some cases oblige the Government to give our courts criminal jurisdiction over the world’s most heinous crimes, including genocide, war crimes, crimes against humanity, torture, and hostage-taking. However, the Government has chosen not to implement those conventions to the full extent possible, leaving inconsistencies and gaps in the law. These gaps effectively provide impunity to international criminals, allowing them to visit and in some cases stay in the UK without fear of prosecution. The Government has also chosen not to give the courts jurisdiction to allow victims of torture to sue the foreign states who tortured or approved torture. The Torture (Damages) Bill would provide an exception to state immunity for torture and therefore allow torture victims to pursue their torturers for reparations, even if the torturers are states or states’ agents. The Government should ensure the full force of UK law is behind victims of international crimes. Genocide, crimes against humanity and war crimes in internal armed conflicts should be criminal offences backdated to the dates when they were recognised as criminal offences in international law. Suspects should be liable to arrest if found in the UK, regardless of whether or not they are technically resident here. The Government should create an exception to the state immunity rule for torture, just as it has done for property and employment disputes involving foreign states. Whilst the UK has universal criminal jurisdiction to prosecute those alleged to have committed torture abroad, it has not legislated for equivalent civil jurisdiction – but it could. Victims of torture are entitled to seek reparations under international law. The Government should legislate to allow British torture victims to pursue torturing states for damages. The Torture (Damages) Bill would have this effect. The Government should therefore support it. Closing the Impunity Gap: UK law on genocide (and related crimes) and redress for torture victims 5 1 Introduction Background UK law regarding genocide and related crimes 1. Over the last century, the international community has agreed that genocide, war crimes (in both international and internal armed conflicts), crimes against humanity, torture and hostage-taking are criminal offences of a particularly egregious nature, which require the extension of the domestic courts’ normal jurisdiction to ensure that perpetrators are brought to justice, wherever they may be. 2. These crimes are defined by separate international instruments and, as a result, are dealt with in a piecemeal and inconsistent fashion in UK law. Suspects of genocide, for example, may visit the UK without fear of arrest, but suspects of torture may not. Suspects against whom a case has been made sufficient to warrant their extradition to Rwanda for trial continue to live comfortably in the UK because UK courts have found that the Rwandan criminal justice system would not offer them a fair trial. 3. Despite recognising the “difficulties” with the existing law, the Minister, Clare Ward MP, defended the Government’s long-held position against extending jurisdiction over genocide, crimes against humanity and war crimes in civil wars retrospectively, when she gave oral evidence on 1 July.1 One week later, on 7 July, the Secretary of State for Justice announced that the extra-territorial jurisdiction of UK courts over genocide, crimes against humanity and war crimes in civil wars would be made retrospective to 1991, and that they would consider the need to more clearly define the ‘residence’ requirement.2 We are pleased that the Government has reconsidered the need for law reform but we are unable to consider the details of the Government’s proposals in depth because they will be published in the autumn. We have also not had a chance to call for further evidence on this development, although we have received a short supplementary memorandum from the Aegis Trust.3 4. In this report, we consider the reasons for the existing anomalies in UK law and their practical consequences. We comment on the Government’s recently announced policy change, and make recommendations aimed at removing what amount to impunity gaps for the world’s worst criminals. Reparations for torture victims 5. The UK has universal jurisdiction to prosecute individuals suspected of committing torture abroad after 1988, under the Criminal Justice Act 1988.4 However, victims cannot 1 Q62, Q66, Q68; Q59-Q80. 2 The Secretary of State, Jack Straw’s Written Ministerial Statement was on the Coroners and Justice Bill, which the Government intends to amend at the Report Stage in the House of Lords to amend the International Criminal Court Act 2001. 3 Ev 23 4 See para 13 and footnote 5 for the definition of ‘universal jurisdiction’. 6 Closing the Impunity Gap: UK law on genocide (and related crimes) and redress for torture victims get compensation by suing foreign governments for torture: states are immune from the civil jurisdiction of domestic courts under the State Immunity Act 1978. 6. There are numerous exceptions from state immunity under the 1978 Act, including for employment and property disputes. Article 14 of the UN Convention Against Torture (UNCAT) recognises the right of torture victims to reparations. International law regarding state immunity is developing; while extra-territorial civil jurisdiction is not currently required of states, states are arguably permitted to provide their courts with such jurisdiction. The Government could therefore legislate to create extra-territorial civil jurisdiction through the Torture (Damages) Bill. 7. In this report, we examine the existing state of affairs in the UK regarding reparations for torture victims. We make recommendations aimed at realising the rights of torture victims to compensation
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