Tuesday, July 19, 2005

UK courts human rights

A conviction this week for grave human rights abuses comitted abroad represents a positive step in combatting impunity. Faryadi Sarwar Zardad was yesterday convicted in the UK for torture and hostage-taking committed in Afghanistan between 1991 and 1996. His conviction is the first of its kind in the UK (and possibly anywhere) - neither the accused or victims were UK nationals, and the acts did not take place in the UK.

The (in)famous Belgian 'anti-atrocity' law of 1993 allowed anyone to initiate war crimes proceedings against an accused who did not need to be present in Belgium, for specified crimes committed anywhere against anyone - in short, the law required no nexus to the alleged crime. The law was amended following international pressure - needless to say, States did not approve of such a threat to their sovereignty (the US for example threatened to move the NATO headquarters from Brussels).

The Zardad judgment is not yet available. However, the court most probably had jurisdiction for proceedings under the Torture Convention, so this is not an example of exercise of universal jurisdiction under customary international law. Neither is it an example of the exercise of universal jurisdiction in the strict sense, since the UK was under an obligation to prosecute or extradite Zardad under Article 7 of the Torture Convention. According to Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, the jurisdictional basis in cases such as this "is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere." Obligation is the key word here. The UK was obliged to prosecute in the absence of an extradition request by Afghanistan, whereas Belgium had the discretion to issue arrest warrants pretty much at will under its 1993 law, hence indictments for Bush etc.

The Zardad case does not pose the same kind of threat to stability/sovereignty as the Belgian 'anti-atrocity' law, so is more realistic as a precedent. It is potentially evidence of States taking their international obligations more seriously. If the practice is followed, Zardad, although less radical than the Belgian law, could be a more significant in the long term for the enforcement of international law.

No comments: