A. Introduction
As a precursor to the United Kingdom's ratification of the Rome Statute of the International Criminal Court (ICC)Footnote 1 in 2001, the respective Parliaments in the UK adopted two Acts to implement the obligations that treaty imposed on the UK, and to implement the international crimes, as defined in that treaty, into the law of the UK.Footnote 2 When the International Criminal Court Act (ICC Act) was being debated in 2001, Baroness Scotland, speaking for the Government, explained that part of the raison d'etre of the Act was that the UK ought not to be seen as a safe haven for international criminals.Footnote 3 However, in line with article 11 of the Rome Statute, the jurisdiction of UK courts over such offences, insofar as they were not already covered by the Geneva Conventions Act 1957 and the Genocide Act 1969 (the latter of which was repealed by the ICC Act)Footnote 4 only applied prospectively.
Unfortunately international criminality did not begin in 2001, and there were a number of reported instances of alleged international criminals living in the United Kingdom. Those reports concentrated primarily on individuals from the former Yugoslavia and Rwanda,Footnote 5 both of which, of course, have international tribunals dealing with international crimes committed there. The United Kingdom voted for the creation of both tribunals, but those tribunals are now coming to the end of their mandate, and there are a number of suspects who will not be tried before them. This is sometimes because the Tribunals have referred the cases back to national courts, but in other cases, because the international tribunals have not considered the cases to be sufficiently important to issue indictments and invoke their primary jurisdiction over them. Such persons may, nonetheless, still be fully worthy of prosecution, and, in some circumstances it has proved impossible to extradite suspects, especially to Rwanda, on the basis that they may not receive fair trials there.Footnote 6 As a result something needed to be done, as a number of NGOs, and others, had noted.Footnote 7 In other words, it proved necessary for the United Kingdom to provide for a statutory basis for UK courts to prosecute international crimes committed prior to 2001 which were not already covered by other legislation.Footnote 8 The opportunity to do this was taken in the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009.Footnote 9 The relevant section (section 70)Footnote 10 is rather complex, and raises three particular issues: the question of retrospectivity, sentencing, and the controversial issue of the definition of residence. It is the purpose of this piece to explain those three matters. It ought to be noted at the outset that these issues are interlinked, and have to be understood together.
B. Backdating Jurisdiction
Section 70 of the Coroners and Justice Act backdates the relevant provisions of the International Criminal Court Act 2001 to 1 January 1991. Therefore it is necessary to briefly set out the relevant sections of that Act. The relevant provisions for our purposes are sections 51, 52 and 65.Footnote 11 Section 51 creates the offences of genocide, crimes against humanity and war crimes in the law of England and Wales. Section 52 applies general principles of liability to those offences. Interestingly, with one exception (section 65), the ICC Act applies the principles of liability from the law of England and Wales rather than the Rome Statute. The two are not identical, but it appears that the Government's view was that they are sufficiently similar to make the approach robust from the point of view of complementarity. Section 65 introduces command/superior responsibility (as defined in article 28 of the Rome Statute) into domestic law, as the UK does not have an analogous domestic principle of liability.
Section 70 of the Coroners and Justice Act adds in a section 65A to the ICC Act, which, in a spirit of candour, provides for the ‘retrospective application’ of the relevant offences and principles of liability.Footnote 12 This raises two issues, first, the question of why 1991 was chosen; and second, more generally, the question of the lawfulness of the retrospective application of (international) criminal law.
1. The date
There were many possible dates to which the various forms of international criminality could have been domestically criminalized, the Genocide Convention, for example, ‘confirmed’ that it was a crime in 1948,Footnote 13 and serious violations of the laws and customs of war have been considered war crimes since long before.Footnote 14 The Government decided, however, despite suggestions that they should go back further, to set the start of 1991 as the cut-off date for retrospectively applying the crimes in the ICC Act. When explaining the choice of the date, Lord Bach explained that:
The date is pivotal in the development of international law. It is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute these three types of crime. It allows us to adopt the same date for all three areas, and it is not too far back to make successful prosecution impractical.Footnote 15
In some ways this is true. The creation of the ICTY was a watershed in international criminal law, the discipline would not have undergone the renaissance it has in the past decade and a half were it not for the creation of that Tribunal. On the other hand, there may well be other international criminals living, or resident for the relevant purposes, in the UK, whose crimes were committed before 1991, who also merit prosecution. In addition, there is no necessary reason why the same date needs to be adopted for all three offences. For example, the Geneva Conventions Act came into force in 1957, the Genocide Act in 1969, but this was not considered to be a major problem.Footnote 16 On the practical point Lord Bach raised, as the Sawoniuk case showed, prosecution can occur, and defensibly, after considerably more than forty years.Footnote 17
The changes in the law brought about by the Coroners and Justice Act have to be seen in the round though, and it cannot be forgotten that the Act applies not only to crimes committed in England, Wales and Northern Ireland, but also to those committed by nationals and residents, including, owing to sections 68(1) and (2) of the ICC Act, those who have become resident after commission of the relevant offence. It may, or may not, be the case that there are UK nationals who are responsible for international crimes prior to 1991. However, whatever the likelihood of retrospective jurisdiction before 1991 causing embarrassment for the UK, since the Act applies to all residents, the possibility of engaging in investigations of offences prior to 1991 by such persons, proved too much for the Government to commit to. Hence that date proved to be a compromise to which the Act gives expression.
2. Retrospectivity
The retrospective application of the ICC Act is, however, subject to an important limitation. This is contained in section 65A(2) of the (amended) ICC Act, which provides that:
[T]hose sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law.
The retrospective creation of liability for international crimes is not unknown in the United Kingdom. Most notably, the War Crimes Act 1991 retrospectively granted UK courts jurisdiction over killings in violation of international law committed in World War II. Admittedly, that Act provoked, if not a constitutional crisis, a full and frank debate on the appropriateness of retrospectivity between the House of Commons and the House of Lords.Footnote 18 Of course, the retrospective creation of criminal offences is usually considered to violate the nullum crimen sine lege principle enshrined in, inter alia, article 7 of the European Convention on Human Rights (ECHR).Footnote 19 The first limb of article 7(1) provides that ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute an offence under national or international law at the time when it was committed.’Footnote 20 As article 7(1) makes clear though, a valid conviction can be entered if there was a criminal prohibition in either international or domestic law at the time of the relevant conduct. As a result, it does not violate article 7 to create retrospectively in domestic law international crimes, so long as they were in existence at the time of the relevant conduct.Footnote 21 If the conduct was directly criminalized by international law,Footnote 22 then putative defendants were already under that prohibition at the time, so it is not impermissible to later grant domestic courts jurisdiction to prosecute those offences, which is what section 65A does.
The difficulty came about though, owing to the fact that the ICC Act adopted the Rome Statute's definitions of war crimes and crimes against humanity. Genocide was not really an issue, since the Rome Statute essentially uses the definition originally adopted in article II of the Genocide Convention 1949.Footnote 23 However, what amounts to a war crime, and the precise definition of crimes against humanity, are more complex matters, particularly going back to 1991.Footnote 24 Although for many war crimes the question is not too difficult, as Lord Bach explained:
The position in the other areas is less straightforward. While the vast majority of offences were recognised as criminal in international law by 1991, a small number may have been recognised at that time in a narrower form than appears in the 2001 Act, and a very small number may not have been sufficiently recognised at all in 1991. Indeed, international law naturally developed over the period in question, and it is important that our clauses cater for this to ensure the maximum possible coverage for that period—1991 to 2001. We have therefore developed a hybrid approach providing absolute certainty where possible, but elsewhere including a requirement that the relevant conduct amounted in the circumstances at the time to an offence under international law.Footnote 25
This is the reason that section 65A(2) expressly refers to crimes against humanity and the war crimes in articles 8(2)(b) and (e). Those aspects of article 8 refer to the war crimes in the Rome Statute which are not referable to grave breaches of the Geneva Conventions of violations of common article 3. These were assumedly considered uncontroversial by the Government.Footnote 26
‘An offence under international law’ is a phrase that needs some unpacking. It cannot mean the Rome Statute per se, as the Statute did not come into force until 2002. It may be taken to mean applicable treaties (Additional Protocol I would be an example—but one covered by the Geneva Conventions Act since 1995),Footnote 27 but the primary referent is probably customary international law. In determining the content of that law, courts are likely to be able to derive considerable guidance from the jurisprudence, in particular of the ICTY (and ICTR). Their reliance on such evidence of customary international law is bolstered by section 50(5) of the ICC Act. This provides that ‘the court shall take into account any relevant judgment or decision of the ICC. Account may also be taken of any other relevant international jurisprudence’.Footnote 28 Indeed, one pragmatic reason to argue for the starting date of 1991 is to facilitate reference to the ICTY's jurisprudence (and the practice it contains) on what customary international law said at that time.Footnote 29 The importance, for example, of the Tadić interlocutory Appeal ought not be underestimated, even 15 years on.Footnote 30 Going back further than this would require a more difficult search for evidence of international law at the relevant time.
That is not to say that this is the end of the matter. The ICTY, has not, dealt with the matter of child soldiers, and it is probably fair to say that (small) aspects of the definitions of crimes in the Rome Statute are broader than those that were accepted in 1991. For example, the Norman decision of the Special Court for Sierra Leone determined, by a majority, that the crime of recruiting child soldiers existed by 1996 (not 1991),Footnote 31 and Judge Robertson, in dissent, said that the custom only crystallized in 1998, with the negotiation of the Rome Statute.Footnote 32
Where a defendant successfully shows that the Rome Statute norm was broader than international law applicable at the time of the relevant conduct, it would normally mean that a conviction would violate article 7 of the ECHR. However a defendant can still be convicted if the relevant conduct satisfied the narrower prohibition that international law contained at the time.Footnote 33 This is not problematic from the point of article 7, as the conduct would still satisfy the requirement that it was criminalized in international law at the time. It is also interesting, in that the conduct of the defendant will have to be measured, not against the standards set directly in the Statute, but those in (usually customary) international law. The Act, in these circumstances, essentially requires the courts to directly apply international law in this area.
A similar comment may be made with respect to section 65A(5). That section applies the general principles of liability applicable in the law of England and Wales to international crimes back to 1991. There could be a problem with doing so, to the extent that principles of liability may differ from those in general international law at the time, hence the requirement that the conduct was criminal in international law. Since command responsibility is also backdated to 1991 by section 65(7), the same requirement (that the conduct was criminal in international law at the time) is imposed. This could raise some interesting issues, in particular as the ICTY has held that the mens rea for command responsibility in custom is narrower than that for military commanders in the Rome Statute.Footnote 34
3. Sentencing
As noted above, Genocide and Grave Breaches of the Geneva Conventions have been offences in the law of England and Wales since they were criminalized by the Genocide Act 1969 and the Geneva Conventions Act 1957 respectively. A conviction for an offence under either Act carried with it a maximum term of 14 years' imprisonment, unless murder was involved, when the sentence was life imprisonment. The ICC Act increased the maximum penalty available in domestic law for such offences committed after 1 September 2001 to 30 years,Footnote 35 if the offence did not involve murder.Footnote 36 Section 70(3) of the Coroners and Justice Act modifies the maximum penalties which are applicable to both genocide and war crimes committed in international armed conflict perpetrated during the period of retrospection by inserting section 65B into the ICC Act. This provision provides that any pre-existing offence of genocide or war crime committed in international armed conflict perpetrated between 1 January 1991 and 1 September 2001 shall be punishable by a maximum of 14 years' imprisonment. The reduction of the penalty during that period was introduced in order to ensure compliance with article 7(1) of the ECHR,Footnote 37 which states in its second limb that ‘a heavier penalty [shall not] be imposed than the one that was applicable at the time the criminal offence was committed’.
Section 65B is only applicable to pre-existing international offences in the criminal law of England and Wales. The term pre-existing offences is defined by section 65B(5) as conduct criminalized by the ICC Act which, at the time of its commission, also amounted to an offence under the Genocide Act or the Geneva Conventions Act. It is clear that crimes against humanity and war crimes which do not constitute grave breaches of the Geneva Conventions will not be recognized as pre-existing offences, and any conviction for these offences committed during the period of retrospection will be subject to the 30 years' maximum penalty. Not all acts of genocide will, however, satisfy the meaning of pre-existing offences contained in section 65B(5). Although genocide was criminalized in domestic law by the Genocide Act,Footnote 38 it is worth noting that extraterritorial conduct amounting to genocide was (probably) not an offence in the law of England and Wales prior to 2001 when the ICC Act entered into force. Section 65B would thus not apply to such acts of genocide and a conviction for these crimes committed during the period of retrospection will be likely to be subject to the 30 years' maximum term of imprisonment.
The limited application of section 65B in relation to conduct amounting to genocide or a grave breach of the Geneva Conventions between 1991 and 2001 is unlikely to breach the European Convention. Since article 7(1) permits the retroactive conviction of conduct that is criminalized by international law, it ought to follow that the penalties that may be imposed are those international law provides for. The jurisprudence of the European Court of Human Rights has interpreted the second limb of article 7(1) to imposes qualitative requirements of both accessibility and forseeability.Footnote 39 In this regard, article 7(1) requires that penalties must be clearly defined by law and that an individual must be able to determine what penalty will be imposed for their criminal acts.Footnote 40 Customary international law permits States to impose sentences up to and including the death penalty for international crimes.Footnote 41 As such, it is unlikely that an international criminal could claim that a severe sentence was unforeseeable.Footnote 42 Similarly, it might be doubted that the limitations in the Coroners and Justice Act were entirely necessary, since international law already directly applied more severe penalties to such offences. Nonetheless, the Act has taken a ‘belt and braces’ approach, which may be overly lenient on point.
C. The Concept of ‘Residency’
In addition to international crimes committed in England 0and Wales,Footnote 43 the ICC Act granted national courts jurisdiction over UK nationals.Footnote 44 Section 68(1) of the ICC Act asserts jurisdiction over crimes committed elsewhere by non-nationals against other non-nationals subject to the limitation that the alleged offender is, or subsequently becomes, a resident of the United Kingdom.Footnote 45 The definition of residency is contained in section 67(2) of the ICC Act. It explains, in a somewhat unhelpful fashion, that ‘a “United Kingdom resident” means a person who is resident in the United Kingdom’. When the Government was considering whether to amend the retrospective application of the ICC Act, it acknowledged that there was a lack of clarity in the legislation as to what the term actually meant and was therefore willing to ‘explore the possibility of providing more certainty as to who may or may not be considered to be a UK resident’.Footnote 46
Calls were made to the Government to go further than providing statutory guidance on the meaning of the term. Some sought to replace the test of residence with one of presence.Footnote 47 The Government was not receptive to that idea. It took the view that the existing legal framework did not provide a safe haven to those who visited the United Kingdom on the basis that staying for any length of time carried with it the possibility of falling within the meaning of a UK resident and therefore liable to prosecution under the ICC Act.Footnote 48 In addition, the Government was keen to stress its reluctance to assert any jurisdictional competence over individuals who had no connection with the United Kingdom other than being temporarily present in its territory.Footnote 49 On this matter it stated that: ‘Any exercise of universal jurisdiction carries with it a risk of infringing the sovereignty of another State, and is not something that the UK does lightly. In general, we would only do so when required to by an international convention or agreement’.Footnote 50
In both justifying and maintaining the distinction between the residency requirement contained in the ICC Act with the presence requirement contained in other national legislation which asserts universal jurisdiction, the Government noted that the establishment of jurisdiction by the latter was expressly required by treaties which the UK was party to.Footnote 51 In contrast, there is no such requirement in the Rome Statute.Footnote 52 It is true that the Rome Statute does not require States to domestically criminalize international crimes and prescribe regulatory competence over this conduct under the universal principle.Footnote 53 On the other hand, the ICC Act recognizes the lawfulness of the assertion of universal jurisdiction over these offences, without the requirement of presence.Footnote 54 Nonetheless, the Coroners and Justice Act maintains the residency requirement included in the ICC Act. However in response to the critiques of that Act, the Coroners and Justice Act clarifies what residence means in this context in two ways.Footnote 55 First, section 67A(1) lists specific categories of persons who are to be automatically treated as UK residents for the purposes of the ICC Act. Although the Government rejected the idea of introducing a presence requirement into the ICC Act, part of the reform contained in the Coroners and Justice Act allows for prosecutions to be brought against certain individuals from the moment when they first arrive in the United Kingdom. Second, section 67A(2) details a number of factors that the courts are to take into consideration when determining whether an individual is to be treated as a UK resident under the ICC Act.
Section 67A(1) deems certain people to be UK residents when this would not otherwise be the case. The first category to be treated as UK residents by the ICC Act are those who have applied for indefinite leave to remain in the UK, or those who have been granted indefinite leave to remain.Footnote 56 In both instances the only requirement is that the individual is present in England or Wales in order to be considered a resident, and it is immaterial whether the person's application has been rejected or is yet to be determined.
The second category provided for are individuals who have leave to enter or remain in the United Kingdom for the purposes of work or study. Again, there is a requirement that the individual is present in the United Kingdom. Although the Government had previously stated that students from abroad would not fall within the meaning of a UK resident,Footnote 57 the provision only covers those who have specifically been granted leave to enter or remain in the United Kingdom. A particular group not covered by this category are visiting armed forces who do not require such leave to receive military training in the United Kingdom.Footnote 58
The next category deals with applications for asylum and human rights claims. Similar to requests for indefinite leave to remain in the United Kingdom, individuals who have been granted asylum or been successful in their human rights claim are to be treated as UK residents.Footnote 59 Moreover, so long as the individual is present in the United Kingdom, this will be the case regardless of whether their claim has been rejected or is yet to be determined.Footnote 60 Dependents of individuals who make an application for indefinite leave to remain, an asylum claim, or a human rights claim, are to be treated as residents in instances when an application or claim has been granted;Footnote 61 or when a dependent is present in the United Kingdom, and irrespective of whether the application or claim is yet to be determined.Footnote 62
The fourth category provides that individuals who cannot be removed or deported from the United Kingdom by virtue of obligations imposed by the ECHR, or for some other practical reason, are to be treated as UK residents.Footnote 63 The next named category is concerned with individuals who are to be deported under the Immigration Act 1971 on the grounds that doing so is conducive to the public good. It provides that individuals against whom such a deportation order has been made are to be treated as UK residents,Footnote 64 as are those who are present in the United Kingdom and have appealed their order regardless of whether the appeal is yet to be determined.Footnote 65 The penultimate set of persons are individuals who are illegal entrants within the meaning laid down in the Immigration Act 1971, as well as those who are liable to be removed under section 10 of the Immigration and Asylum Act 1999.Footnote 66 Finally, individuals who are detained in lawful custody, as defined in section 67A(3), are to be treated as UK residents for the purposes of the ICC Act.Footnote 67
The recognition that individuals who cannot be removed or deported from the United Kingdom are to be deemed as residents by the ICC Act is significant. Article 1F(a) of the Refugee Convention 1951 provides that refugee status cannot be claimed where there are serious reasons for considering that an individual has committed crimes against peace, war crimes or crimes against humanity.Footnote 68 According to the travaux préparatoires, one of the purposes of article 1F(a) is to ensure that offenders who commit these serious crimes do not travel abroad to escape the prospect of criminal prosecutions being brought against them in their home State.Footnote 69
Ordinarily the UK would grant humanitarian protection to asylum seekers denied of refugee status where substantial grounds have been shown that they face a real risk of suffering serious harm if returned.Footnote 70 However, the Immigration Rules expressly exclude asylum seekers falling within article 1F(a) from being granted humanitarian protection.Footnote 71 Although such asylum seekers may not remain in the UK on either refugee or humanitarian grounds, they still enjoy rights under the ECHR and cannot be removed in instances where they face a real risk of being exposed to treatment prohibited by article 3 of the Convention.Footnote 72 Article 1F(a) asylum seekers, like all other individuals who cannot be removed or deported from the United Kingdom, now fall within the categories provided by sections 67A(1)(e) and (g), and are therefore liable to face criminal prosecutions under the ICC Act from the moment when they first arrive in the United Kingdom and not after an arbitrary period of time that they have remained in order to be deemed as UK residents.Footnote 73
In addition to the list of categories specifically detailing the instances when certain individuals are to be treated as UK residents, the Coroners and Justice Act provides a number of non-exhaustive factors that the courts are to take into account when determining the issue of residency. Although the determination of whether an individual has become a UK resident is still to remain a question of fact and degree for the courts to decide in each case, the newly inserted section 67A(2) into the ICC Act provides that the courts are to have regard to the following guiding factors: the periods during which the individual has been or intends to be in the UK; the purposes for which the individual is, has been or intends to be in the UK; whether the individual has family or other connections to the UK, and the nature of those connections; and whether the individual has an interest in residential property located in the UK.Footnote 74 Although these guiding factors are likely to be of great assistance to the courts, the fact remains that the concept of residency is not completely determinate.
D. Conclusion
Generally, the amendments to the ICC Act brought in by the Coroners and Justice Act ought to be seen as welcome developments. Without introducing some form of retrospectivity, the possibility of the United Kingdom being seen as a safe haven for international criminals was there, as reports of alleged perpetrators have clearly shown.Footnote 75 The retrospectivity issue has been handled sensitively, albeit in a manner which may require courts to enter difficult customary waters at times. Although the Government could not be persuaded to include a presence, rather than residence test, the clarification of the term is helpful, although far from perfect. Perhaps the largest disappointment is that, in spite of these changes, there is still no specialist war crimes unit in the Metropolitan Police. This would be an important development in ensuring that substance, procedure and practice cohered, but the Government would not move on that point.Footnote 76
