Whenever a simmering conflict breaks out anew and reports of war crimes flood our screen, thoughts turn not just to support for victims but to accountability for perpetrators. Can this be expected? And how would it actually work? Let’s take the war in Ukraine. If a member of the Wagner Group showed up in the UK, you would expect criminal justice authorities to apprehend them straight away, right? You would not expect them to be able to avail themselves of luxuries such as shopping in Harrods or having specialised treatments in Harley Street.
After all, successive Prime Ministers have stated that “the atrocities committed by Russian troops in Bucha, Irpin and elsewhere in Ukraine have horrified the world”, and that Russia “must be held accountable for the horrendous war crimes that have been committed”. You’d expect suspected criminals to be met with the full force of the law and held accountable for their actions.
You’d be wrong. Due to political apathy and the reticence of successive Tory governments on the application of international law, the UK has now fallen behind other countries in the G7 on the prosecution of international crimes. With conflicts escalating across the world and indeed potential crimes against humanity, war criminals - from rank and file hostage-takers to leadership-level genocidaires - are effectively handed a get-out-of-jail free card when they disembark at any British airport.
“The UK has been made an outlier on international criminal law, seemingly without any foreign policy rationale”
At present, English courts can only try some international crimes such as genocide if the perpetrator is (a) present in the UK and (b) is a UK national or legal resident. This means that non-UK citizens/residents can visit London without fear of prosecution as essentially our laws are inhibited from trying them in court.
This approach is completely out of sync with practice across the Atlantic in Canada and the USA and across the Channel, in France and Germany. The UK has been made an outlier on international criminal law, seemingly without any foreign policy rationale.
It is high time the UK updates its statute book to prevent further deterioration to the rules-based order.
This was the powerful message in a recent joint report by the Clooney Foundation for Justice and Redress who have comprehensively identified a number of necessary changes to ensure there is no ‘Get Out of Jail Free’ card for international criminals who set foot in the UK. The proposed reforms centre around the operation of Universal Jurisdiction laws which allow courts to try serious international crimes - regardless of where those crimes occur.
The CFJ/Redress report recommends straight forward amendments to the International Criminal Court Act 2001 by removing nationality and residency requirements on bringing prosecutions for genocide, crimes against humanity and war crimes. It also rightly points out that whilst torture can be prosecuted if it was committed after 1998 and genocide if committed after 1 January 1991 - crimes against humanity and war crimes can only be prosecuted if they occurred after 1 September 2001. The misalignment of limitation periods of these crimes tell the story of a country who has legislated for these critical issues sporadically and without the properly formed intention to follow through with prosecutions.
The practical challenges of implementing international criminal law in Britain are also damaged by us no longer being a member of the EU’s Eurojust and Europol networks and without access to the Schengen information System (a database of people entering the EU) all of which foster better international cohesion on investigations.
Most damningly, there have only ever been three successful prosecutions of international crimes in English courts, with the last case taking place over a decade ago. Given how often suspects travel to the UK - whether to enjoy London’s services as a financial ‘laundromat’ or simply for tourism - this is a shocking record on international justice.
The apathy, especially over the last decade, to international crimes is anathema to the notion of ‘Global Britain’. You might have thought given the current state of geopolitics, it would be a good idea to address the lacunas in the law in the King’s Speech next week and the final session of Parliament before the UK General Election. Instead, we are being trailed that Rishi Sunak’s policy agenda promises pro-car/anti-green policies cracking down on 20mph zones. For shame.
Sashy Nathan is a lawyer specialising in international human rights, crime, digital rights and regulatory law.
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