Brendan O’Hara (Argyll and Bute) (SNP)
I beg to move,
That leave be given to bring in a Bill to provide that offences
of genocide, crimes against humanity and war crimes may be tried
in the United Kingdom regardless of the nationality or residence
of the offender; and for connected purposes.
The Universal Jurisdiction (Extension) Bill would tighten
existing legislation on how we bring to justice those responsible
for the world’s most heinous crimes. The Bill would allow legal
systems across the UK to do that, irrespective of where the
crimes were committed, regardless of the nationality or location
of the perpetrators or victims, and without having to consider
whether the accused person or the victim had any specific
connection to the UK. In short, the Universal Jurisdiction
(Extension) Bill is about saying to the world’s worst criminals
that there is no hiding place and there will be no immunity.
Under international law, states are required to investigate and,
if necessary, prosecute certain crimes under the principle of
universal jurisdiction. It is the international community’s way
of recognising that there are crimes so grave that we all have an
inherent responsibility and collective interest to ensure that
they are prosecuted. The Bill seeks to help the UK meet its
international responsibilities by amending the International
Criminal Court Act 2001. Although that Act gives courts
jurisdiction over war crimes, genocide and crimes against
humanity, it is still woefully deficient in providing what we
would want from legislation claiming to operate universal
jurisdiction.
The main problem with the 2001 Act is that even with the most
heinous crimes, if they were committed outside the UK, they can
be prosecuted here only if the accused person is a UK national, a
UK resident or subject to UK service jurisdiction. While some may
say that the UK does have universal jurisdiction when it comes to
such crimes, the reality is that what we have in the UK could
best be described as a system of extraterritorial jurisdiction.
That is what the Bill seeks to remedy, so that we instead have a
real and meaningful system of universal jurisdiction for those
crimes of genocide, crimes against humanity and war crimes. That
is important, because given what is happening in the world right
now, this is a live and pressing issue, whether in Ukraine,
Myanmar, Xinjiang, Tigray or many, many other places.
Many people are working right now on how the UK should change its
definition of universal jurisdiction. I put on record my thanks
to Dr Ewelina Ochab of the International Bar Association’s Human
Rights Institute for her invaluable assistance in putting the
Bill together. I also thank the Clooney Foundation for Justice,
which has done an enormous amount of work on this topic in recent
months, and which will in the next couple of months release its
own report on universal jurisdiction in the United Kingdom.
I understand that among that report’s key recommendations will be
that the UK Government amend section 51(2)(b) of the
International Criminal Court Act 2001 to remove the requirement
that for genocide, crimes against humanity and war crimes, the
crime needs to have been committed either in the UK or, if
committed outside the UK, by a UK national or resident for our
courts to have jurisdiction. The report will argue instead that
the UK should provide jurisdiction over those international
crimes committed anywhere in the world, even when that offence
bears no relation to the UK.
As the Clooney Foundation for Justice report will set out, our
courts already have universal jurisdiction when it comes to
torture and certain other war crimes, which can be prosecuted
regardless of the defendant’s nationality. There is no convincing
explanation for the distinction that is drawn between the law on
torture and those other international crimes. One consequence of
the loophole might well be that Russian generals with blood on
their hands could still travel to the UK, go shopping in
Knightsbridge, undergo medical treatment and dine out in London’s
best restaurants without facing the risk of arrest for the most
serious and heinous crimes in the world. The foundation argues
that that must change, and I wholeheartedly agree.
In this changing world, it is becoming increasingly clear that
the UK’s position on universal jurisdiction is simply not fit for
purpose. That is not just because we operate this
extraterritorial jurisdiction, but because under current law,
proceedings for international crimes cannot be brought without
the consent of the Attorney General. Ultimately that means that
decisions to prosecute these crimes will be a political decision.
Consequently, the UK cannot possibly play as meaningful a part in
ensuring justice and accountability as it should. That may go
some way to explaining why, to this day, British courts have not
prosecuted anyone for their involvement in genocide, despite the
fact that we have suspected perpetrators residing in the UK from
both the Rwandan and the Yazidi genocides.
Even by the Government’s own assessment, almost 1,000 British
nationals travelled to Syria and Iraq to join Daesh. They were
all complicit in the horrific atrocities, the killings, the
rapes, the sexual enslavement of Yazidi women and girls, and much
more—so much more, indeed, that this House unanimously declared
in April 2016 that Daesh atrocities did indeed constitute a
genocide. The UK Government also estimate that 400 British Daesh
fighters are now back in the UK, yet only 32 of those returnees
have been convicted for terror-related offences, or less than 10%
of the returnees. Not one—not a single—Daesh fighter has stood
trial in the UK for the rape and sexual enslavement of Yazidi
women and children. Not one of them has been charged with torture
or the forced recruitment of young boys into the ranks of Daesh
fighters. Not one of them has been held to account for the mass
graves that are still being uncovered in Sinjar, and not one of
them has been asked to explain the fate of the 2,700 Yazidi women
and girls who are still unaccounted for. They have all gotten
away with genocide.
But it does not have to be this way. Many of our friends and
allies have changed their law to meet the changing situation. In
Germany, the law is unambiguous, saying that universal
jurisdiction will apply to all criminal offences against
international law. That means, regardless of where an offence was
committed and whether it involves a German citizen, an accused
person can be tried before a German criminal court. It has been
this determination to pursue universal jurisdiction—genuine
universal jurisdiction—that has resulted in the first ever
prosecutions and convictions for members of Daesh for
genocide.
In January 2023, President Biden signed into law the Justice for
Victims of War Crimes Act, which greatly expands the scope of
individuals who can face prosecution for US war crimes. That Act
will assist the Department of Justice in prosecuting alleged war
criminals who are found in the United States, regardless of where
they committed a crime or the nationality of either the
perpetrator or the victim. The law was given extra impetus in the
wake of Russia’s invasion of Ukraine, where there is now a
growing body of evidence of war crimes being perpetrated by
Putin’s army.
Despite many warm words, the harsh truth is that, if UK domestic
law is not strengthened, we will be unable to play a full part in
bringing some of the world’s worst criminals to justice. That is
why we need proper, universal jurisdiction, and that is why we
also need to remove that extra political hurdle of seeking the
permission or consent of the Attorney General before we can
prosecute for genocide. This Universal Jurisdiction (Extension)
Bill aims to address these issues, and help the UK play a full
and appropriate role in ensuring justice, accountability and the
upholding of international law.
Question put and agreed to.
Ordered,
That Brendan O’Hara, , , , , , , , , and present the
Bill.
Brendan O’Hara accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 24
November, and to be printed (Bill 296).
