Certain crimes transcend the territorial confines of any State and become a matter of concern to the world as a whole. In those cases, where a domestic prosecution is not likely or possible, other States or international courts may step in. Such crimes may qualify by the gravity of the acts themselves, as with genocide or crimes against humanity, or by the context in which they are committed, as in war crimes. Yet two recent cases – one in the UK, one at the International Court of Justice – demonstrate that external political factors can be equally determinative of whether a prosecution for the gravest of crimes will take place.
The Reeves-Taylor case
Agnes Reeves-Taylor, the ex-wife of former Liberian president Charles Taylor, was previously facing charges of torture and conspiracy to commit torture, for her role in the actions of the National Patriotic Front of Liberia in 1990. The prosecution was being brought here as section 134 of the Criminal Justice Act 1988 gives the UK universal jurisdiction to prosecute torture committed by “a public official or person acting in an official capacity”, whether it took place in the UK or elsewhere.
In December 2019, however, Sweeney J dismissed all charges. He said:
I have asked myself in relation to each count whether there is sufficient evidence taken at its reasonable height upon which a jury could properly conclude that at the time and location of each offence, the NPFL was exercising governmental function in the relevant area. In my view the answer in each instance is clearly in the negative.
The decision follows a Supreme Court judgment in which a majority of the court allowed Ms Reeves-Taylor’s appeal against an earlier refusal to dismiss the charges. They concluded, contrary to the appellant’s case, that section 134 of the 1988 Act is wide enough to include a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. It was not necessary for the conduct to be on behalf of the government of a State.
However, they distinguished the exercise of governmental function from purely military activity. Noting that since the Court of Appeal hearing, the prosecution had served a memorandum from their expert clarifying that “control” in his evidence refers to military rather than administrative control over the area, the Supreme Court remitted the matter to the trial judge to reconsider the original application to dismiss. (See here for a more detailed summary of the judgment.)
The cumulative result of the Supreme Court judgment and Sweeney J’s ruling is that the alleged conduct of Ms Reeves-Taylor could not constitute an offence under section 134 of the 1988 Act. That section implements the UK’s obligation to prosecute “official” torture, as set out in the UN Convention Against Torture (“the Convention”). Torture committed on behalf of an entity exercising only military control does not come within the remit of the Convention.
A matter of concern to the international community?
Part of Lord Lloyd-Jones’s reasoning, at paragraph 76 of the judgment, was to consider the purpose of the Convention in seeking to establish a regime for the international regulation of “official” torture, as opposed to private acts. “Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme.”
The implication is that the international community was not concerned with torture by a military occupying force when it drafted the Convention in 1984
The implication of his distinction between governmental and military authority is that the international community was not concerned with torture by a military occupying force when it drafted the Convention in 1984.
It was evidently a matter of proper concern to the international community, however, when the Rome Statute (the treaty which established the International Criminal Court) was adopted in 1998. Article 5 specifies that the International Criminal Court’s jurisdiction is “limited to the most serious crimes of concern to the international community as a whole”. These include crimes against humanity – which is defined in Article 7 to include torture when committed as part of a widespread or systematic attack against any civilian population – and war crimes – which is defined in Article 8 as including torture when committed in the context of an armed conflict.
Both were incorporated as offences in UK domestic law by sections 50 and 51 of the International Criminal Court Act 2001. This includes conduct outside the UK, as long as it is committed by UK nationals or UK residents. Therefore torture committed outside the UK in certain circumstances not covered by section 134 of the 1988 Act can be prosecuted here.
This is only possible, however, if the conduct took place after January 1991. Section 70 of the Coroners and Justice Act 2009 inserted section 65A to the 2001 Act, to impose retrospective application, but only so far back as 1991. It would only be an offence if at the time the conduct amounted to a criminal offence in international law, thus complying with the restriction on the retrospective creation of an offence under Article 7 of the European Convention on Human Rights.
Why 1991? The purpose was to ensure that prosecutions could be brought in the UK for genocide, crimes against humanity and war crimes that may have been committed in Rwanda and former Yugoslavia in the 1990s. It was suggested that the provision should go back further than 1991, but this was rejected by the government of the time. Lord Bach explained in the House of Lords:
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.
It has been suggested, however, that these reasons do not stand up to scrutiny. In fact, the prospect of engaging in investigations of offences by UK nationals prior to 1991 was perhaps more than the government could commit to. Therefore, the date may simply have been a compromise.
As it happens, the alleged conduct of Ms Reeves-Taylor relates to events that took place in 1990. It is arguable that torture on behalf of an entity exercising military control in a civil war would have been an offence under international law at that time, particularly in light of Article 3 of the Geneva Conventions in 1949 (see paragraph 18 of Lord Lloyd-Jones’s judgment). Yet, while the international community has apparently decided that such alleged conduct would be of concern to it, it appears the UK parliament has decided that, since it was before 1991, it is not the concern of the UK domestic courts. This is not due to anything about the allegations themselves or some fundamental legal development in 1991 but rather, it seems, a quirk of legislative history, resulting from political considerations in 2009.
Myanmar: obstacles to prosecution
Such quirks are all too familiar in international criminal law, which is often guided more by politics than the rule of law. Evidence of crimes of international concern being committed would not, it transpires, necessarily lead to a prosecution.
For example, the UN Human Rights Council’s Independent Fact-Finding Mission on Myanmar concluded in its report in September 2018 that there were consistent patterns of serious human rights violations in parts of Myanmar, some of which “undoubtedly amount to the gravest crimes under international law”. In other words, there is evidence of crimes being committed that are of concern to the international community. In other circumstances, such a finding could lead to the prosecution of the individuals responsible, either domestically or on the international stage if necessary.
International criminal law is often guided more by politics than the rule of law
Yet that seems unlikely. Due to China and Russia’s opposition, the UN Security Council has not and will not refer the alleged crimes to the International Criminal Court (“ICC”). Moreover, Myanmar is not a party to the Rome Statute, so without a Security Council referral the ICC cannot investigate potential crimes occurring within Myanmar. This has not deterred the Prosecutor of the ICC, Fatou Bensouda, who instigated an investigation of her own initiative, but only into cross-border crimes, such as forced deportation, which impose upon Bangladeshi territory (which does come under the ICC’s jurisdiction). It remains to be seen how far the investigation goes in the face of strong opposition from dominant international powers.
Further attempts at a solution can be found in the case currently before the International Court of Justice, brought by the Gambia against Myanmar (for a comprehensive overview of that case and the relevant legal principles, see this blog post by the European Journal of International Law). At the initial stage, the ICJ partly granted the Gambia’s request for provisional measures in relation to the alleged genocide by Myanmar against the Rohingya (see the order of 23 January 2020).
This is only the start, however, and the case is likely to run on for years. If successful, the Gambia’s case could ultimately establish Myanmar’s state responsibility for the crimes committed on its territory. Yet it could not establish the guilt of any individuals, and may be of little consolation to those wishing to bring the Rohingya’s alleged persecutors to some form of justice. Moreover, the Gambia’s partial success at the initial stage, where the standard of proof is much lower, does not mean that they are likely to succeed on the merits. In fact, prospects for a final judgment in their favour appear low, given the difficulty of proving the existence of genocidal intent.
Such is the uneven application of international criminal law. The ICC has frequently been criticised – perhaps fairly – for mainly targeting African individuals. Of the 12 current investigations, only two of them are outside Africa. It is also often commented that Western states are never investigated, and US policy towards the ICC suggests it will be extremely difficult to change that.
It is surely right that, for a crime to be prosecuted in an international court, or by a domestic court exercising universal jurisdiction, there must be some quality to the criminal conduct that elevates it to a matter of concern to the international community. Yet what is clear from recent experience is that such a quality is not sufficient for the international community to take a meaningful interest. International and domestic politics – and perhaps a bit of chance – will always play a part.
 Robert Cryer and Paul David Mora, ‘The Coroners and Justice Act 2009 and international criminal law: backing into the future’, International & Comparative Law Quarterly ICLQ 2010, 59(3), 803-813