FREE CHAPTER from ‘A Practical Guide to International Crimes in Proceedings Before the Courts of England and Wales’ by Kathryn Howarth

CHAPTER ONE – JURISDICTION TO TRY INTERNATIONAL CRIMES


This chapter will consider the jurisdiction of the Crown Court in England and Wales over war crimes, crimes against humanity (“CAH”), genocide and torture. There are four principal pieces of legislation which criminalise these international crimes and which provide a legal basis for a prosecution, namely:

  • The Geneva Conventions Act 1957 (“GCA”);

  • Section 134 of the Criminal Justice Act 1988 (“CJA”);

  • The War Crimes Act 1991 (“WCA”);

  • The International Criminal Court Act 2001 (“ICCA”), as amended by the Coroners and Justice Act 2009.

In practice, it is most likely that a prosecution for international crimes before the Crown Court will involve charges under the ICCA, or section 134 CJA. Therefore, this chapter will begin by setting out the jurisdiction to try international crimes under the ICCA, followed by section 134 CJA, then the GCA and finally the WCA. There have been three cases in relation to section 134 CJA.1 There is yet to be a case before the Crown Court in relation to the ICCA. There have not been any cases before the Crown Court in relation to the GCA.2 There have been two cases including one conviction under the WCA.3


The International Criminal Court Act 2001 (“ICCA”)4

The ICCA entered into force on 1 September 2001.5 In summary, the ICCA:

  • Sets out the law governing the United Kingdom’s interrelationship with the International Criminal Court (the “ICC”).6 This is detailed primarily in Parts 27, 38 and 49 of the ICCA.

  • Incorporates the relevant parts of the Rome Statute of the ICC into domestic law, enabling courts in England, Wales and Northern Ireland to prosecute war crimes, CAH and genocide.10 This is addressed in Part 5 of the ICCA titled “Offences under domestic law” and Schedule 8 to the ICCA.

  • Sets out the jurisdiction of the Crown Court in relation to the prosecution of these crimes that is territorial, personal and temporal jurisdiction, as well as some preconditions to prosecution under the ICCA (also Part 5, ICCA). Notably, the ICCA does not establish universal jurisdiction in relation to these international crimes.

ICCA offences

Section 51 of the ICCA creates the following offences under the domestic law of England and Wales:

  • Genocide,

  • Crimes against humanity,

  • War crimes.

Rather than three offences, the ICCA in fact creates over 90 substantive offences when the different war crimes, acts which constitute CAH and forms of genocide are considered separately.11 It is worth noting that prior to the ICCA, genocide was already an offence in this jurisdiction under the Genocide Act 1969,12 although that Act did not provide for extra-territorial jurisdiction.13 Certain war crimes were also already offences in the UK prior to the ICCA, under the GCA, which is still in force and is discussed below.

Section 52 of the ICCA explicitly makes conduct ancillary to genocide, CAH and war crimes an offence.14 Section 55 sets out that ancillary offences refer to:

  • Aiding, abetting, counselling or procuring the commission of an offence;

  • Inciting a person to commit an offence;

  • Attempting or conspiring to commit an offence;

  • Assisting an offender or concealing the commission of an offence.15

Section 65 of the ICCA also establishes for the first time in domestic law,16 the criminal liability of military commanders17 and other superiors18 for the failure to prevent the commission of the substantive international crimes and ancillary offences by their subordinates.

Section 50 of the ICCA, titled “Meaning of “genocide”, “crimes against humanity” and “war crime””, explains that the definitions of these crimes under domestic law, are the same as those definitions found in the Rome Statute of the ICC. Article 6 of the Rome Statute, defines genocide, Article 7 of the Rome Statute defines CAH and Article 8.2 of the Rome Statute, defines war crimes.19 These provisions are replicated at the end of the ICCA in Schedule 8.20 Thus, the meaning of genocide, CAH and war crimes as a matter of domestic law is directly lifted from the Rome Statute.

The ICCA states that in “interpreting and applying” Articles 6, 7 and 8.2, the courts shall take into account” the ICC Elements of Crimes document21 and any relevant jurisprudence or decision of the ICC and that “account may also be taken of any other relevant international jurisprudence”.22 Additionally, domestic courts must interpret Articles 6, 7 and 8.2 “subject to and in accordance with any relevant reservation or declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles”.23 Otherwise, with two exceptions, the ICCA provides that in determining whether an offence has been committed, the court shall apply the principles of the law of England and Wales; meaning that the ordinary principles of criminal law will apply in relation to causation, participation, ancillary liability and defences.24

Territorial Jurisdiction

The ICCA gives the courts of England and Wales jurisdiction over genocide, CAH and war crimes, committed both inside and outside the UK. For offences committed inside England and Wales the court has jurisdiction over all persons. For offences committed outside the UK jurisdiction is limited. The court only has jurisdiction when these crimes are committed by a: (i) UK national, (ii) a UK resident, or (iii) a person subject to UK service jurisdiction (see below in relation to personal jurisdiction).25

Temporal Jurisdiction

In relation to temporal jurisdiction there are two important dates under the ICCA:

  • 1 September 2001,

  • 1 January 1991.26

The ICCA was enacted on 1 September 2001 and it applies to all ICCA offences committed after that date.27 Section 65A (inserted by the Coroners and Justice Act 2009) subsequently extended jurisdiction back to crimes committed after 1 January 1991 but,28 there are very important caveats to the 1 January 1991 date, as it does not automatically apply to all ICCA crimes.29 First, the backdating provisions do not apply to either: (a) CAH, or (b) war crimes within either Article 8.2(b)30 or (e)31 committed before 1 September 2001, “unless, at the time the act constituting the crime was committed the act amounted in the circumstances to a criminal offences under international law”.32 Secondly, the backdating provisions do not apply to accessorial liability under section 52 ICCA, “unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law”.33 Thirdly, the backdating provisions do not automatically apply to command and superior responsibility under section 65 ICCA. Section 65A(8) states that the date of 1 January 1991 “does not apply to a failure to exercise control” as a military commander (as described in section 65(2) ICCA), or as a superior (as described in section 65(3) ICCA) “unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law”.34

Thus, where the alleged conduct occurs between 1 January 1991 and 1 September 2001, and where a domestic court is dealing with: (1) CAH, (2) war crimes involving “other serious violations of the laws and customs of war”, (3) accessorial liability, or (4) command responsibility, the court will have to examine whether the alleged conduct amounted to a crime under international law at the time it was committed. This will involve domestic courts considering evidence about whether the alleged conduct was a crime contrary to customary international law at the time. In relation to some crimes and conduct, the domestic courts will be able to refer to jurisprudence from international tribunals who have conducted such exercises previously; although such jurisprudence is, of course, not binding. In relation to other crimes and conduct the domestic courts may have to perform this exercise for the first time. Whilst such an exercise is not unfamiliar to our domestic courts, it can be challenging and time-consuming.

Personal Jurisdiction

As noted already above, the ICCA applies to anyone if the crime is committed in England and Wales.35 Where the crime is committed outside of the UK, the Crown Court has jurisdiction over:

  • A UK national,

  • A UK resident,

  • A person subject to UK service jurisdiction.36

The ICCA does not provide for jurisdiction over mere transitory visitors. This is a significant limitation, which notably does not apply to section 134 CJA, or the GCA. In practice, it means that whereas SO15 may commence an investigation into an individual who it is anticipated will come to the UK and who is suspected of torture, or grave breaches of the Geneva Conventions,37 an investigation will not be undertaken in relation to a potential visitor to the UK who is suspected of genocide, CAH, or war crimes (other than grave breaches). In other words, a suspected genocidaire, or person suspected of CAH or war crimes (other than grave breaches) can travel to the UK without fear of being arrested in relation to their prosecution in the Crown Court for ICCA crimes.38

Section 67(1) ICCA sets out the meaning of an “United Kingdom national” as follows:

  1. In this Part a “United Kingdom national” means an individual who is –

  1. A British citizen, a British Dependent Territories citizen, a British National (Overseas) or a British Overseas Citizen,

  2. A person who under the British Nationality Act 1981 (c.61) is a British subject, or

  3. A British protected person within the meaning of that Act.

Section 67(2) ICCA provides that a “United Kingdom resident” means “a person who is resident in the United Kingdom”. An ostensibly simple definition but see section 67A below. Section 67(3) ICCA explains that a “person subject to UK service jurisdiction” means “a person subject to service law, or a civilian subject to service discipline, within the meaning of the Armed Forces Act 2006”.

Significantly through section 68 ICCA, jurisdiction extends to a person who becomes a UK resident, even though they were not a UK national, UK resident or person subject to UK service jurisdiction, at the time an offence was committed.39 This jurisdiction includes both the substantive and ancillary offences.40 The jurisdiction bites once two conditions are fulfilled:

  1. The person is a resident at the time that the proceedings are brought, and

  2. The acts would have constituted an offence in the UK at the time they were committed.41

The definition of a UK “resident” was further articulated in the Coroners and Justice Act 2009, which introduced a new section 67A into the ICCA. Section 67A(1) explains that “UK resident” includes the following ten different categories of person:

  • A person who has indefinite leave to remain;42

  • A person who has made an application for indefinite leave to remain (whether or not the application had been determined) and who is in the UK;43

  • A person who has leave to enter the UK for the purpose of work or study and who is in the UK;44

  • A person who has made an asylum claim, or a human rights claim, which has been granted;45

  • A person who has made an asylum claim, or a human rights claim (whether or not the claim has been determined) and who is in the UK;46

  • A person named as a dependent in an application for indefinite leave to remain, an asylum claim or a human rights claim, where either: (i) the application or claim has been granted, or (ii) the named dependent is in the UK (whether or not the application or claim has been granted);47

  • A person who is liable for removal or deportation from the UK but who cannot be removed for human rights reasons or practical reasons;48

  • A person who is in the UK and who has appealed against a deportation order on made on “conducive to the public good” grounds;49

  • An illegal entrant who is liable to removal;50

  • A person detained in lawful custody.51

Additionally, section 67A(2) sets out that in determining whether “any other individual” is to be regarded as resident in the UK “regard is to be had to all relevant circumstances” including:52

  • Periods of time during which the person has or intends to be resident in the UK;53

  • The purpose of the person being in the UK, or the purpose for which they intend to be in the UK;54

  • The persons family or other connections in the UK;55

  • Whether the person has a residential property in the UK.56

The ICCA (as amended) defines “UK resident” by referring to the detailed provisions of immigration law. Any practitioners dealing with litigation involving a “UK resident” will therefore need to be alive to the legislation and authorities applicable in immigration law because the Crown Court will not have jurisdiction unless it can be established that the defendant is a UK resident.

Pre-conditions to Prosecution

ICCA crimes are triable only on indictment57 and proceedings for ICCA crimes cannot be instituted without the consent of the Attorney General.58


Section 134 of the Criminal Justice Act 1988 (“CJA”)59

Section 134 of the Criminal Justice Act 1988 (“CJA”) implements in domestic law certain UK obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (“UNCAT”).60 This includes the obligation of States Parties to enact legislation to make torture an offence under their domestic criminal law.61 The UK’s obligations under UNCAT mean that where a person alleged to have committed torture is present within the UK, and is not extradited to face a trial elsewhere, the UK is required to submit the case to its authorities for the purpose of prosecution.62 Thus, there is an obligation pursuant to UNCAT to either prosecute or extradite torturers who are present in the UK.63

Section 134 makes torture an offence of universal jurisdiction i.e. anyone who commits torture anywhere in the world can be prosecuted for this offence in the Crown Courts of England and Wales.64 Jurisdiction is limited only temporally, by the requirement that the offence took place after 29 September 1988, which is the date when section 134 entered into force.65 By virtue of section 135 CJA 1988, prosecutions under section 134 in England and Wales, require the consent of the Attorney General. The consent of the DPP is needed before an arrest warrant can be issued for allegations under section 134.66 There is no UK nationality or residency requirement (unlike the ICCA). Thus, section 134 CJA can apply to individuals merely visiting the UK. Further, there is no requirement that the torture took place in an armed conflict.67 This reflects the fact that torture under the CJA has its origins in UNCAT and international human rights law, rather than international humanitarian law. In summary:

  • Temporal jurisdiction is from 29 September 1988,

  • Territorial jurisdiction is anywhere in the world,

  • Personal jurisdiction is anyone, there is no residency or citizenship requirement.

R v Kumar Lama

An example of a visitor to the UK being arrested in relation to allegations under section 134 CJA is Kumar Lamar. Kumar Lama was a Colonel in the Nepalese army, who was arrested when visiting relatives in England during a break from duties with the Nepalese army in South Sudan. He was accused of torturing two Nepalese citizens, Janak Raut and Karam Hussein, who had been detained as suspected Maoists at the Gorusinghe Army Barracks in Nepal in 2005.68 His trial took place at the Central Criminal Court in September 2016. He was acquitted of a charge in relation to Karam Hussein and the prosecution did not seek another trial after the jury were unable to reach a verdict in relation to the charges in respect to Janak Raut.69

The Geneva Conventions Act 1957 (“GCA”)70

The Geneva Conventions Act 1957 (“GCA”) creates as a matter of domestic law, an offence of committing a “grave breach” of the Geneva Conventions. The Geneva Conventions are the four principal legal documents of international humanitarian law (“IHL”). IHL is part of international law (“IL”) and refers to a set of rules which seek to limit the ill effects of armed conflict for humanitarian reasons. IHL is derived from international conventions and customary rules of IL. 71 The Geneva Conventions have been signed by almost every nation in the world. 72 They were agreed as a result of an international conference held in Geneva in 1949 in the shadows of the Second World War.73 Although, the development of the Conventions can be attributed to a process that progressed in stages between 1864 and 1949.74 In 1977 each of the Geneva Conventions were supplemented by Additional Protocols.75 The Conventions provide specific rules to safeguard:

  • Combatants (members of the armed forces) who are wounded or sick, or shipwrecked,

  • Prisoners of war,

  • Civilians,

  • Medical personnel, military chaplains and civilian support workers of the military.76

The Geneva Conventions will be considered in greater detail in the chapter on War Crimes under the ICCA.

The GCA gives effect to the UK’s international law obligations under the Geneva Conventions, specifically the obligation to criminalise “grave breaches” of the Geneva Conventions under domestic criminal law.77 “Grave breaches” are defined in similar terms in each of the Geneva Conventions.78 For example, Article 50 of the first Geneva Conventions states:

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.79

The grave breach regime only relates to international armed conflict and not to non-international armed conflict. Grave breaches under the 1949 Conventions therefore refer to the following specific war crimes when committed in international armed conflict:

  • wilful killing,

  • torture or inhuman treatment, including biological experiments,

  • wilfully causing great suffering or serious injury to body or health, and

  • extensive destruction, and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Additionally, the grave breaches regime and jurisdiction under the GCA extends to grave breaches of Additional Protocol I and III of the Geneva Conventions.80 Specifically, those grave breaches listed in paragraphs 1-4 of Article 11 and paragraphs 2, 3 and 4 of Article 85 of Additional Protocol I, as well as the misuse of the distinctive emblems referred to in Article 6 to Additional Protocol III. The list of grave breaches added by these provisions is lengthy, so will not be set out here, but can be found in the schedules to the GCA.81 Some examples of conduct in international armed conflict which became part of the grave breach regime through Additional Protocol I include: practices of apartheid82, making the civilian population or individual civilians the object of attack”,83 and “launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects”.84

In relation to temporal jurisdiction, the GCA applies to:

  • grave breaches of the Geneva Conventions of 1949 from 31 July 1957,85

  • grave breaches of Additional Protocol I committed from 20 July 1998,86

  • grave breaches of Additional Protocol III committed from 5 April 2010.87

Like section 134 CJA, the GCA is based upon the principle of universal jurisdiction, so can apply to anyone, anywhere. Thus, territorial jurisdiction is both inside and outside of the UK,88 and personal jurisdiction is “any person”;89 there is no requirement of nationality or residence. As with the other international crimes, proceedings under the GCA cannot be instituted without the consent of the Attorney General.90 Additionally, the consent of the DPP is needed before an arrest warrant can be issued for allegations under the GCA.91

Notably, the ICCA created concurrent jurisdiction in relation to grave breaches of the Geneva Conventions.92 However, jurisdiction under the GCA is more expansive. Temporal jurisdiction under the GCA stretches back to 1957, rather than 1991 under the ICCA. Personal jurisdiction is wider under the GCA because there is no requirement of nationality or residency, unlike the ICCA. Additionally, the GCA also covers grave breaches of Additional Protocols which are not covered by the ICCA.93 Thus, despite the advent of the ICCA, the GCA may still be utilised in a Crown Court case.


The War Crimes Act 1991 (“WCA”)

The War Crimes Act 1991 (“WCA”) is a concise piece of legislation which is limited in scope. It is concerned with individuals who committed war crimes under the Nazi regime and who reside in the UK.94 The WCA entered into force on 9 May 1991. It applies to England, Wales and Northern Ireland.95 It permits proceedings to be brought for murder, manslaughter or culpable homicide, which violate the laws and customs of war between 1st September 1939 and ending 5th June 1945, in a place which at the time was part of Germany, or under German occupation.96 Personal jurisdiction is limited to any person who “was on 8th March 1990, or subsequently became a British citizen, or resident in the UK”.97 The consent of the Attorney General is required in order to bring proceedings under the WCA.98

The WCA has its genesis in revelations in the 1980s that individuals who had committed war crimes under the Nazi regime were living in the UK. These revelations resulted in an Inquiry, which recommended the enactment of legislation to enable domestic courts to try acts of murder and manslaughter committed as war crimes.99 The Inquiry looked at hundreds of potential cases. However, only two of those cases ultimately proceeded to trial, resulting in a single conviction against Anthony Sawoniuk.100 Anthony Sawoniuk, was a senior member of the local police force in Domachevo, Belarus, a town that had been under German occupation. He was convicted of two counts relating to the murders in 1942 of two civilian members of the Jewish population of the town.101 In practice, there will not be any further prosecutions under the WCA, owing to the limited jurisdiction and given that any potential defendant would now be well into their 90’s. Consequently, the consideration of the WCA in this chapter has been kept correspondingly concise.

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1Prosecutions were brought in relation to: Faryadi Zardad, Kumar Lama and Agnes Taylor. Only the case against Faryadi Zardad (R. v Faryadi Sarwar Zardad [2007] EWCA Crim 279) resulted in a conviction.

2Robert Cryer and Olympia Bekou, “International Crimes and ICC Cooperation in England and Wales”, J.I.C.J. 5 (2007) 441-459 at p.442.

3Anthony Sawoniuk was convicted on 1 April 1999 at the Central Criminal Court (R v. Sawoniuk [2000] 2 Cr.App.R 220). Szymon Serafinowicz was found unfit to stand trial at the Central Criminal Court in January 1997.

5In England, Wales and Northern Ireland. See the International Criminal Court Act 2001 (Commencement Order) 2001: 2001 No.2161 (C.69) and The International Criminal Court Act 2001 (Commencement) (Amendment) Order 2001: 2001 No.2304 (C.77).

6These parts of the ICCA give effect to the UK’s obligations under Article 88 of the Rome Statute to ensure that there are procedures under domestic law to enable cooperation with the ICC in relation to the arrest of suspects and the investigation of crimes under the ICC’s jurisdiction.

7Part 2 is titled “Arrest and delivery up of persons”.

8Part 3 is titled “Other forms of assistance”.

9Part 4 is titled “Enforcement of sentences and orders”.

10The Explanatory Note to the ICCA, para 6, states that one of the principal aims of the ICCA is to incorporate the offences into domestic law “so that the UK will always be in a position to investigate and prosecute any ICC crimes committed in this country, or committed overseas by a UK national, a UK resident or a person subject to UK service jurisdiction”.

11This includes five genocide offences, 16 acts which constitute CAH and more than 70 war crimes.

12See the Genocide Act 1969 (repealed by Schedule 10 ICCA).

13Archbold Criminal Pleading, Evidence and Practice 1999 ed. 19-352 at 1660, which described it as “doubtful” that genocide committed by a British subject abroad was an offence under the Act.

14Section 52 ICCA. Note that section 52(3) ICCA explains that that the reference to ancillary conduct is “to conduct that would constitute an ancillary offence in relation to that act if it were committed in England and Wales”.

15The Explanatory Notes to the ICCA explain that section 55 includes the forms of secondary liability in Article 25.3 of the Statute but are defined in terms of the principles of secondary liability under the law of England and Wales.

16See S. Powles and R. May, “Command Responsibility – A New Basis of Criminal Liability in English Law?” [2002] Crim.L.R. 363 at 377.

17Section 65(2) ICCA.

18Section 65(3) ICCA.

19Section 50(1) ICCA.

20Note that Article 8.1 of the Rome Statute, which indicates that the ICC has jurisdiction in respect of war crimes in particular when they are committed as part of a plan or policy or as part of a large-scale commission of crimes, is not incorporated into the ICCA and therefore is not a jurisdictional requirement in relation to an ICCA case.

21Section 50(2) ICCA. Emphasis added.

22Section 50(5) ICCA. Emphasis added.

23Section 50(4) ICCA. For a discussion of the potential implications of this provision see Robert Cryer and Olympia Bekou, “International Crimes and ICC Cooperation in England and Wales”, J.I.C.J. 5 (2007) 441-459 at 444-445, noting in particular the reservations or declarations made by the UK alongside the ratification of the 1977 Additional Protocol I to the four Geneva Conventions of 1949 and the UK’s statement on ratification of the Rome Statute.

24Section 56(1) ICCA. The two exceptions are the incorporation of the definition of “intent” and “knowledge” from Article 30 the Rome Statute, as set out in section 66 ICCA, and the introduction of the concept of command or superior responsibility from Article 28 of the Rome Statute, as set out in section 65 ICCA. See also “Implementation of the International Criminal Court Statute in England and Wales”, Robert Cryer, I.C.L.Q., 733-747 at 740.

25Section 51 ICCA and section 52 ICCA with respect to conduct ancillary to genocide, CAH and war crimes.

26Section 65A ICCA.

27See footnote 4. This coincides with the jurisdiction of the ICC under the Rome Statute Article 11(1), although note the caveat on temporal jurisdiction contained in Article 11(2).

28Notably, the date of 1 January 1991 meant that crimes committed during the conflicts in the former Yugoslavia and Rwanda could be caught but the date of 1 January is not without controversy and some commentators have argued that jurisdiction under the ICCA could be extended back further than 1991 – see for example: Cryer and Mora, “The Coroners and Justice Act 2009 and International Criminal Law: Backing into the Future?” (2010) 59 I.C.L.Q, 803 at 805.

29The rationale for caveating the backdating provisions is to ensure compliance with the general principle against non-retroactivity under the law of England and Wales as well as Article 7 ECHR. See the Explanatory Note to the Coroners and Justice Act at paras. 399- 400. Para. 400 notes that the backdating provisions do not apply “to genocide and certain categories of war crimes because it is beyond dispute that those offences were fully recognised in international law in 1991”. However, in relation to the other ICCA offences, it is noted that, “whilst the vast majority of them were recognised in international law during the relevant period, a small number may have been recognised in a narrower form than that provided for in the 2001 Act and a very small number of offences may not have been sufficiently recognised at all”.

30Schedule 8, Article 8(2)(b) refers to “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law”.

31Schedule 8, Article 8(2)(e) refers to “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law”.

32Section 65A(2) ICCA.

33Section 65A(6), which should be read in conjunction with section 65A(3) and 65A(5).

34Section 65A(8) read in conjunction with section 65A(7) and section 65A(9) which confirms that command and superior responsibility under section 65, can include responsibility for ancillary offences committed by a subordinate.

35Section 52(4)(a) ICCA.

36Section 52(4)(b) ICCA. Note that there is no jurisdiction over a person subject to UK service jurisdiction in Northern Ireland, where the relevant crimes are committed outside of Northern Ireland (section 58(2)(b)).

37CPS War Crimes / Crimes Against Humanity Referral Guidelines, under the sub-heading “Scoping Exercise” at para. 2.8. See: https://www.cps.gov.uk/publication/war-crimescrimes-against-humanity-referral-guidelines. The Referral Guidelines were last updated on 30 September 2019. See further chapter 6, Investigation, Referral and Pre-Trial.

38Of course, if there is an extradition request from a third country with whom the UK has extradition arrangements then such a person would be liable to arrest and extradition proceedings.

39Section 68(1) ICCA.

40Section 68(3) ICCA.

41Section 68(2) ICCA.

42Section 67A(1)(a) ICCA.

43Section 67A(1)(b) ICCA.

44Section 67A(1)(c) ICCA.

45Section 67A(1)(d) ICCA.

46Section 67A(1)(e) ICCA.

47Section 67A(1)(f) ICCA.

48Section 67A(1)(g) ICCA. Regarding human rights reasons see section 6 of the Human Rights Act 1998.

49Section 67A(1)(h) ICCA. See section 5(1) Immigration Act 1971 and section 3(5)(a) in relation to “deportation conducive to public good” grounds.

50Section 67A(1)(i) ICCA, which refers to an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971, or who is liable to removal under section 10 of the Immigration and Asylum Act 1999.

51Section 67A(1)(j) ICCA.

52Notably paragraph 402 of the Explanatory Note to the Coroner’s and Justice Act states that section 67A provides a “non-exhaustive list of considerations a court must take into account in determining whether a person is resident in the UK”.

53Section 67(A)(2)(a) ICCA.

54Section 67(A)(2)(b) ICCA.

55Section 67(A)(2)(c) ICCA.

56Section 67(A)(2)(d) ICCA.

57Section 53(2) ICCA.

58Section 53(3) ICCA.

60United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, (1990) (Cm 1775), 1465 UNTS 85 (“UNCAT”). UNCAT was adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 and entered into force, 26 June 1987, in accordance with article 27(1).

61See UNCAT, Article 4, regarding the obligation of each state party to make torture an offence under their criminal law.

62UNCAT, Article 7(1).

63This is known as the principle “aut dedere aut punier” – see Lord Browne-Wilkinson at pp.200F-H and 201A, in R. v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.3) [2000] 1 AC 147 (“Pinochet (No.3))”.

64This gives effect to the UK’s obligations under Article 5 of UNCAT.

65Section 171(6) CJA 1988 i.e. two months after the CJA 1988 entered into force on 29 July 1988.

66Magistrates Court Act 1980, section 1, as amended by the Police, Reform and Social Responsibility Act 2011, section 153(1).

67Although the three cases under section 134 to date did in fact relate to armed conflicts: Faryadi Zardad related to the conflict in Afghanistan, Kumar Lamar related to the civil war in Nepal and Agnes Taylor related to the first Liberian civil war.

68Reports of the appellate proceedings in this case, which outline the allegations made by Janak Raut and Karam Hussein can be found at: R. v Lama (Kumar) [2014] EWCA Crim 1729, [2017] Q.B. 1171, [2017] 3 W.L.R. 469.

69An initial trial had begun in 2015 but had to be aborted owing to problems with interpretation. This is discussed in the final chapter.

71For a summary about IHL and the place of the Geneva Conventions in IHL, see for example, the ICRC Advisory Service Note, “What is International Humanitarian Law?” , July 2004, at: https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf

72For a summary of the historical development of the Geneva Conventions see the American Red Cross, “Summary of the Geneva Conventions of 1949 and Their Additional Protocols”, April 2011 (https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf).

73Ibid.

74Ibid. See also, International Law, Malcolm N. Shaw, ninth ed., Cambridge University Press, p.1031 and 1031-1033 in relation to the development of the Geneva Conventions and Additional Protocols.

75Ibid.

76See the War Crimes under the ICCA chapter under the sub-heading “The Geneva Conventions of 1949”, for the full citations in relation to the four Geneva Conventions and their Additional Protocols, as well as further discussion of the same.

77See for example, Article 49 in relation to the “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field”, which is set out along with the rest of the text of the Convention in the first schedule to the GCA.

78See GCA, section 1A, which indicates that the grave breach provisions are contained in Article 50 to the First Schedule to the GCA, Article 51 to the Second Schedule, Article 130 of the Third Schedule, Article 147 of the Fourth Schedule and in paras. 1-4 of Article 11, or para. 2, 3 or 4 of Article 85 of the first protocol. The schedules to the GCA contain the text of the Geneva Conventions and relevant protocols.

79Article 50, ibid.

80Geneva Conventions (Amendment) Act 1995, extended the GCA to include grave breaches under Additional Protocol I of the Geneva Conventions and the Geneva Conventions and United Nations Personnel (Protocols) Act 2009, extended the GCA to include grave breaches under Additional Protocol III.

81GCA, Fifth Schedule Protocol I and Schedule 7 in relation to Protocol III.

82Article 85(4)(c) Additional Protocol I, Fifth Schedule to the GCA.

83Article 85(3)(a) Additional Protocol I, Fifth Schedule to the GCA.

84Article 85(3)(c) Additional Protocol I, Fifth Schedule to the GCA.

85The date of entry into force of the GCA. The GCA entered into force on the day it received Royal Assent.

86The date of entry into force of the Geneva Conventions (Amendment) Act 1995. See the Geneva Conventions (Amendment) Act 1995 (Commencement) Order 1998, S.I. No. 1505 (C.30), section 2.

87The date of entry into force of the Geneva Conventions and United Nations Personnel (Protocols) Act 2009. See the Geneva Conventions and United Nations Personnel (Protocols) Act 2009 (Commencement No.1) Order 2009, S.I. No. 2892 (C.128), section 2.

88Section 1(1) GCA 1957.

89Section 1(1) GCA 1957.

90Section 1A(3) GCA 1957.

91Magistrates Court Act 1980, section 1, as amended by the Police, Reform and Social Responsibility Act 2011, section 153(1).

92Grave breaches are discussed further in relation to the chapter on War Crimes under the ICCA.

93See the Explanatory Notes to the ICCA at para. 92, which explains that the GCA takes a wider jurisdiction than the ICCA and by virtue of the Geneva Conventions (Amendment) Act 1995 and covers grave breaches of Additional Protocol I of the Geneva Conventions. See also, for example, “Implementation of the International Criminal Court Statute in England and Wales”, Robert Cryer, I.C.L.Q., pp.733-747 at p.740, which gives the example of the war crime of launching attacks that cause excessive collateral civilian damage, which has a “higher threshold for conviction” under the ICCA than the GCA Additional Protocol I, and noting that a prosecutor may seek to charge this offence under the GCA rather than the ICCA.

94See the preamble to the WCA.

95Section 3(5) WCA.

96Section 1(1) WCA.

97Section 1(2) WCA.

98Section 1(3) WCA.

99See “International crimes in the courts of England and Wales”, Dr. Kate Grady, C.L.R., 2014 693 at p.704, referring to Richardson, “War Crimes Act 1991” (1992) 55 M.L.R. 73, at p.75 citing the Report of the War Crimes Inquiry (1989), Cm 744 and noting that the legislation was very controversial at the time. See further, Rosalyn Higgins (Baroness Higgins, GBE, KC), “Time and the Law: International perspectives on an Old Problem” (1997) I.C.L.Q.501-520 at p.509, who observes that the WCA 1991 was drafted in “the narrowest possible terms”.

100The other case concerned Szymon Serafinowicz, who was found unfit to stand trial at the Central Criminal Court.

101See R. v Sawoniuk (Anthony) [2002] 2 Cr.App.R. 220 (2000). For further discussion of this case see the final chapter, The Trial.