Brendan O’Hara – 2023 Speech on the Extension of Universal Jurisdiction

The speech made by Brendan O’Hara, the SNP MP for Argyll and Bute, in the House of Commons on 25 April 2023.

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, Drew Hendry, Caroline Lucas, Liz Saville Roberts, Kirsty Blackman, Claire Hanna, Patrick Grady, Jim Shannon, Ben Lake, Patricia Gibson and Stewart Malcolm McDonald 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).