Amal Clooney and Rupert Skilbeck on why Britain fails to hold war criminals to account
Three reforms are needed to make its international justice efforts more robust, say the lawyers
by The Economist, October 19, 2021
In the year and a half since Russia invaded Ukraine, Britain has repeatedly condemned Vladimir Putin’s illegal act of aggression. It has taken action at the un, frozen $23bn in Russian assets, imposed sanctions on 1,550 individuals, referred the conflict to the International Criminal Court (icc) and donated £1m ($1.2m) to support its investigation. But what would the British authorities do if a Russian general who has committed crimes against humanity in Ukraine showed up at London’s Heathrow airport? Would he be arrested and put on trial? The answer, unfortunately, is no.
British law recognises a principle known as universal jurisdiction, which permits the courts of any country to hold trials for a handful of offences—such as genocide, crimes against humanity and war crimes—that “shock the conscience of mankind”, no matter where they occur. But legal and practical challenges have meant that only three people have ever been convicted of such crimes in Britain, with the last conviction secured almost 20 years ago.
The three successful cases resulted in convictions of individuals accused of torture in Afghanistan, war crimes in Iraq, and a Nazi who murdered 18 Jews. And they provided meaningful justice to victims. Indeed, since the icc does not have jurisdiction over all conflicts, such trials can be the only way for perpetrators to be held to account. But when it comes to bringing such cases, Britain lags far behind countries such as Germany and France that have recently taken war criminals off their streets and put them on trial, securing convictions of Islamic State fighters for crimes against humanity, henchmen of Bashar al-Assad, Syria’s dictator, for torture, and Rwandan fighters for genocide.
Britain has traditionally been at the forefront of international justice efforts, dating back to the Nuremberg trials, when it played a leading role in prosecuting Nazi commanders after the Holocaust. It has supported un-sponsored courts following conflicts in Yugoslavia, Rwanda, Sierra Leone, Lebanon and Cambodia. It was a founding member of the icc. It has a world-class judicial system, talented investigators and experienced lawyers who practise before international courts. Its leaders profess a commitment to justice for war crimes all over the world. So why has it fallen behind other advanced countries in prosecuting them?
The answer lies in three obstacles, all of them domestic. First, Britain does not allow prosecutions for most international crimes unless the suspect is a British national or resident. This keeps Russian generals and Iranian mullahs out of the reach of the British police. For a long time America had a similar limitation in its laws, but this was removed last year, allowing its courts to prosecute any state’s nationals for war crimes if there is evidence that warrants a trial. When the law was reformed, Merrick Garland, the US attorney-general, commented that “in the United States of America, there must be no hiding place for war criminals and no safe haven for those who commit such atrocities”. Britain should be no different.
The second obstacle is inertia. The British authorities have typically waited too long to start an investigation and to gather admissible evidence from witnesses. In the German cases against Islamic State fighters, the investigation started before specific defendants were identified, and the testimony of Yazidi women who were captured by the fighters was pivotal. Similarly, British police should not wait for a suspect to enter Britain before starting their work, and they should let survivors know how to submit evidence that can be used in trials against their abusers.
Finally, Britain has traditionally granted “special mission immunity” to foreign officials visiting the country, without a carve-out for individuals suspected by police or the icc of committing international crimes. This get-out-of-jail-free card should no longer be handed out in a way that undermines Britain’s international obligations and commitment to the rule of law.
Britain has assumed a leading role in responding to the war in Ukraine. But condemnation and financial sanctions are not enough; it must also hold trials of alleged perpetrators within its borders. Britain showed that such trials were possible when it arrested General Augusto Pinochet, a former Chilean president, on charges of torture. But that was 25 years ago. As the world watches the horrors of war unfold in Ukraine, the Middle East and elsewhere, now is the time for Britain to live up to its principles and its history and ensure that, far from being a haven, its shores are hostile territory for war criminals. ■
Amal Clooney is a barrister at Doughty Street Chambers in London and co-founder of the Clooney Foundation for Justice. Rupert Skilbeck is a barrister and director of Redress, a human-rights organisation. (The Economist’s editor-in-chief, Zanny Minton Beddoes, is on the board of the Clooney Foundation for Justice.)