United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 157. Jurisdiction over War Crimes
The UK Military Manual (1958) states:
Those who commit [acts of marauding], whether civilians who have never been lawful combatants, or persons who have belonged to a military unit, an organised resistance movement or a levée en masse
, and have deserted and so ceased to be lawful combatants, are liable to be punished as war criminals. They may be tried and sentenced by the courts of either belligerents.
The manual also provides:
Charges of war crimes are subject to the jurisdiction of military courts, whether national or international, or of such other courts as the belligerent concerned may determine. With regard to the trial of civilians for “grave breaches” of the 1949 [Geneva] Conventions which include the most serious war crimes, jurisdiction can only be conferred upon the ordinary courts of the Power concerned or upon the courts set up by the Occupant. Prisoners of war charged with “grave breaches” and of all other war crimes must be tried by the same courts and in the same manner as in the case of crimes committed whilst in captivity. The courts, whether military or civil, of neutral States may also exercise jurisdiction in respect of war crimes. This jurisdiction is independent of any agreement made between neutral and belligerent States. War crimes are crimes ex jure gentium
and are thus triable by the courts of all States … British military courts have jurisdictions outside the United Kingdom over war crimes committed not only by members of the enemy armed forces but also by enemy civilians and other persons of any nationality, including those of British nationality or the nationals of allied or neutral States. It is not necessary that the victim of the war crime be a British subject.
The manual further emphasizes that “parties [to the 1949 Geneva Conventions] are also bound … regardless of their nationality, to bring [persons alleged to have committed grave breaches] to trial in their own courts”.
The UK LOAC Pamphlet (1981) states: “UK courts are entitled to deal with certain violations of the  Geneva Conventions (wherever occurring) under the Geneva Conventions Act 1957.”
The UK LOAC Manual (2004) states:
The Geneva Conventions 1949 introduced a new concept, that of “grave breaches”. These are war crimes of such seriousness as to invoke universal jurisdiction. Universal jurisdiction entitles any state to exercise jurisdiction over any perpetrator, regardless of his nationality or the place where the offence was committed. In the case of grave breaches, states are obliged to introduce legislation to this effect.
The manual further states:
16.30. International law permits any state to try those accused of war crimes, whatever their nationality and wherever the offence was committed. However, the exercise of jurisdiction will depend on whether the particular crime or the particular offender can be tried according to the domestic law of the state concerned. In the case of grave breaches, states have an obligation to enact legislation to provide effective penal sanctions for persons committing or ordering the commission of any of the acts or omissions concerned …
16.30.2. The civil courts of the United Kingdom can try persons of any nationality who are accused of committing any grave breach of the Geneva Conventions or of Additional Protocol I.
16.30.3. In addition, the International Criminal Court Act 2001 gives jurisdiction to the civil courts of England, Wales and Northern Ireland to try any United Kingdom national or resident, or any person subject to Service jurisdiction, for any offence listed in the Rome Statute of the International Criminal Court, wherever committed. In respect of persons subject to Service jurisdiction, Service courts will also have jurisdiction over such offences except when they are committed within the United Kingdom.
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] conventions or the [1977 Additional Protocol I] shall be guilty of an offence and on conviction on indictment [shall be punished]. In the case of an offence under this section committed outside the United Kingdom, a person may be proceeded against, indicted, tried and punished therefor in any place in the United Kingdom as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.
The UK UN Personnel Act (1997) provides: “A person is guilty of an offence under, or by virtue of, section 1 [attacks on UN workers], 2 [attacks in connection with premises and vehicles] or 3 [threats of attacks on UN workers] regardless of his nationality.”
The UK War Crimes Act (1991) states:
(1) Subject to the provisions of this section, proceedings for murder, manslaughter or culpable homicide may be brought against a person in the United Kingdom irrespective of his nationality at the time of the alleged offence if that offence –
a) was committed during the period beginning with 1 September 1939 and ending with 5 June 1945 in a place which at the time was part of Germany or under German occupation; and
b) constituted a violation of the laws and customs of war.
(2) No proceedings shall by virtue of this section be brought against any person unless he was on 8 March 1990, or has subsequently become, a British citizen or resident of the United Kingdom.
The UK ICC Act (2001) includes as offences under domestic law the acts of genocide, crimes against humanity and war crimes as defined in the 1998 ICC Statute.
Thus the Act provides:
(1) It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.
(2) This section applies to acts committed
(a) in England or Wales, or
(b) outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.
There is a similar provision for Northern Ireland without the reference to “a person subject to UK service jurisdiction”.
In the Pinochet extradition case in 1999 before the UK House of Lords, Lord Millett stated:
In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied. First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. Isolated offences, even if committed by public officials, would not satisfy these criteria.
In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984.
Lord Phillips of Worth Matravers stated:
It is still an open question whether international law recognises universal jurisdiction in respect of international crimes – that is the right, under international law, of the courts of any state to prosecute for such crimes wherever they occur. In relation to war crimes, such a jurisdiction has been asserted by the State of Israel, notably in the prosecution of Adolf Eichmann, but this assertion of jurisdiction does not reflect any general state practice in relation to international crimes. Rather, states have tended to agree, or attempt to agree, on the creation of international tribunals to try international crimes. They have however, on occasion, agreed by conventions, that their national courts should enjoy jurisdiction to prosecute for a particular category of international crime wherever occurring.
In the Sawoniuk case
in 1999, a person was sentenced to life imprisonment at the Old Bailey in London for having murdered in 1942 two Jews in what is now Belarus. The sentence was laid down by virtue of the UK War Crimes Act of 1991.
In 2000, this judgment was confirmed by the Court of Appeal (Criminal Division), which stated, however:
The criminal jurisdiction of the English court is, generally speaking, territorial. Until enactment of the War Crimes Act 1991 the appellant could not be tried here for an offence of murder or manslaughter committed in Belorussia since he has never been a British subject and the exception made by section 9 of the Offences against the Person Act 1861 to the ordinary rule of territoriality was confined to offences of murder or manslaughter committed outside the United Kingdom by British subjects. It remains the law that the appellant could not be tried here for acts of violence committed in Belorussia if not causing death.
In the Jones and others case in 2006, the UK House of Lords were called upon to decide whether the crime of aggression was part of the domestic criminal law of England and Wales. The appellants, charged with various criminal offences committed against UK military installations in 2003, contended that their acts were legally justified, for having been intended to prevent the crime of aggression in the form of the invasion of Iraq. The House unanimously dismissed their appeals. Lord Bingham noted, inter alia:
22. While the appellants acknowledged the paucity of authority on the assimilation of customary international law crimes into municipal law … they contended that war crimes earned inclusion in any modern list. It is true that certain practices have, since mediaeval times, been regarded as contrary to the laws and usages of war. After the Second World War some countries provided for the trial of those accused of this crime by statute (as in Australia), or Order in Council under statutory authority (Canada), and the United States appointed military commissions, a practice which pre-dated the Constitution and was recognised but not established by statute: see Rogers, “War Crimes Trials under the Royal Warrant: British Practice 1945−1949” (1990) 39 ICLQ 780, 787. In this country, an enabling statute was discussed (Rogers, op. cit., pp 788−789) but in the event a Royal Warrant was issued under the royal prerogative on 18 June 1945 to provide for the trial in military courts of persons charged with “violations of the laws and usages of war”, which were treated as synonymous with war crimes. Such courts were to take judicial notice of the laws and usages of war. Pursuant to this instrument some 500 trials were held during the years 1945−1949 (Rogers, op. cit., p 795). Re Sandrock and Others (1945) 13 ILR 297, which concerned the summary execution of a prisoner of war, is one reported example. Since, by 1945, the creation of new offences lay out with the royal prerogative, the underlying premise of the Royal Warrant must, I think, have been that war crimes, recognised as such in customary international law, had been assimilated into our domestic law. It was, however, contemplated that an Act of Indemnity should be passed to give retrospective validity to the proceedings (Rogers, op. cit., pp 788−799), which may betray some uncertainty on the point. But history has moved on. In 1950 the International Law Commission, summarising the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, listed war crimes (“Violations of the laws or customs of war”) as crimes under international law. In section 1(1) of the War Crimes Act 1991, jurisdiction was conferred on British courts to try charges of murder, manslaughter or culpable homicide against a person in this country irrespective of his nationality at the time of the alleged offence if that offence was committed between 1 September 1939 and 5 June 1945 in a place which at the time was part of Germany or under German occupation and “constituted a violation of the laws and customs of war”, an expression which it was not thought necessary to define. It would seem to me at least arguable that war crimes, recognised as such in customary international law, would now be triable and punishable under the domestic criminal law of this country irrespective of any domestic statute …
23. I would accordingly accept that a crime recognised in customary international law may be assimilated into the domestic criminal law of this country. The appellants, however, go further and contend that that result follows automatically. The authorities, as I read them, do not support that proposition. Lord Cockburn CJ rejected it in R v Keyn (1876) 2 Ex D 63, 203, when he said:
“Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.”
In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147 the issue was whether British courts had jurisdiction, before section 134 of the Criminal Justice Act 1988 came into force, to try those accused of torture abroad. But I agree with the observation of Buxton LJ in Hutchinson v Newbury Magistrates’ Court (2000) 122 ILR 499, 506, where a contention similar to the appellants’ was advanced:
“It is also in my view impossible to reconcile that contention with the debate in Pinochet (No 3) which concluded, illuminatingly subject to the specific dissent on this point of Lord Millett, that although State torture had long been an international crime in the highest sense (to adopt the formulation of Lord Browne-Wilkinson  1 AC page 198F) and therefore a crime universally in whatsoever territory it occurred, it was only with the passing of Section 134 of the Criminal Justice Act 1998 that the English criminal courts acquired jurisdiction over ‘international’, that is to say extra territorial, torture.”
In the context of genocide, an argument based on automatic assimilation was rejected by a majority of the Federal Court of Australia in Nulyarimma v Thompson (1999) 120 ILR 353. In the context of abduction it was rejected by the Supreme Court of the United States in Sosa v Alvarez–Machain et al 542 US 692 (2004). It is, I think, true that “customary international law is applicable in the English courts only where the constitution permits”: O’Keefe, “Customary International Crimes in English Courts” (2001) BYIL 293, 335. I respectfully agree with the observations of Sir Franklin Berman (Asserting Jurisdiction: International and European Legal Perspectives, ed M Evans and S Konstantinidis, 2003, p 11) answering the question whether customary international law is capable of creating a crime directly triable in a national court:
“The first question is open to a myriad of answers, depending on the characteristic features of the particular national legal system in view. Looking at it simply from the point of view of English law, the answer would seem to be no; international law could not create a crime triable directly, without the intervention of Parliament, in an English court. What international law could, however, do is to perform its well-understood validating function, by establishing the legal basis (legal justification) for Parliament to legislate, so far as it purports to exercise control over the conduct of non-nationals abroad. This answer is inevitably tied up with the attitude taken towards the possibility of the creation of new offences under common law. Inasmuch as the reception of customary international law into English law takes place under common law, and inasmuch as the development of new customary international law remains very much the consequence of international behaviour by the Executive, in which neither the Legislature nor the Courts, nor any other branch of the constitution, need have played any part, it would be odd if the Executive could, by means of that kind, acting in concert with other States, amend or modify specifically the criminal law, with all the consequences that flow for the liberty of the individual and rights of personal property. There are, besides, powerful reasons of political accountability, regularity and legal certainty for saying that the power to create crimes should now be regarded as reserved exclusively to Parliament, by Statute.” [emphasis in original]
28. The lack of any statutory incorporation is not, however, a neutral factor, for two main reasons. The first is that there now exists no power in the courts to create new criminal offences, as decided by a unanimous House in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions  AC 435. While old common law offences survive until abolished or superseded by statute, new ones are not created. Statute is now the sole source of new criminal offences. The second reason is that when it is sought to give domestic effect to crimes established in customary international law, the practice is to legislate. Examples may be found in the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, dealing with breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977; the Genocide Act 1969, giving effect to the Genocide Convention of 1948; the Criminal Justice Act 1988, s 134, giving effect to the Torture Convention of 1984; the War Crimes Act 1991, giving jurisdiction to try war crimes committed abroad by foreign nationals; the Merchant Shipping and Maritime Security Act 1997, s 26, giving effect to provisions of the United Nations Convention on the Law of the Sea 1982 relating to piracy; and sections 51 and 52 of the International Criminal Court Act 2001, giving effect to the Rome Statute by providing for the trial here of persons accused of genocide, crimes against humanity and war crimes, but not, significantly, the crime of aggression. It would be anomalous if the crime of aggression, excluded (obviously deliberately) from the 2001 Act, were to be treated as a domestic crime, since it would not be subject to the constraints (as to the need for the Attorney General’s consent, the mode of trial, the requisite mens rea, the liability of secondary parties and maximum penalties) applicable to the crimes which were included.
29. These reasons, taken together, are very strong grounds for rejecting the appellants’ contention, since they reflect what has become an important democratic principle in this country: that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties. One would need very compelling reasons for departing from that principle.
In 1990, during a debate in the House of Commons on the subject of Cambodia, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated:
Under the auspices of the United Nations, a tribunal could be established [to try the Khmer Rouge] … Alternatively, Pol Pot and others could be brought to trial under the genocide convention, but the only courts with jurisdiction under that convention would be the Cambodian courts.
In 1991, during a debate in the House of Commons on the prosecution of crimes committed during the Gulf War, the UK Minister of State, Home Office, stated:
All the states involved in the Gulf conflict are parties to the Geneva convention of 1949. We took that convention into our own law in 1957. So we have a wide jurisdiction over war crimes committed anywhere in the world after 1957 under international law.
In 1991, during a debate in the House of Commons on the Middle East, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated:
Anyone who breaks the provisions of the Geneva conventions may be held liable … Machinery already exists under [the Geneva Conventions Act as amended (1957)] for prosecuting grave breaches of them. The three avenues are: first, a trial before Iraqi courts; secondly, extradition for trial before courts of another party to the conventions, including other Arab states; and thirdly, the possibility of special international tribunals.
In 1993, in a written reply to a question in the House of Commons on the subject of the possibility of a war crimes tribunal or special genocide commission to investigate the actions of the Khmer Rouge in Cambodia, the UK Secretary of State for Foreign and Commonwealth Affairs stated:
In the absence of an international tribunal with jurisdiction to try Pol Pot and the Khmer Rouge for genocide, Pol Pot and his associates would have to be brought before a competent Cambodian court. It is therefore for the new Cambodian Government to decide whether to bring them to trial.
In 2004, in a written answer to a question concerning, inter alia, the occupation of Iraq and compliance with international humanitarian law, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
Members of the United Kingdom Armed Forces and contractors are liable under both UK and international law for their conduct while on operations in Iraq …
Any breaches in the law are usually also offences against service law, and are tried under service discipline Acts, but may also be tried under ordinary criminal law, which includes the Geneva Convention Act 1957 and the Criminal Justice Act 1988 (which gives effect to the torture convention). Likewise, contractors would also be tried under ordinary criminal law if they were found to have abused Iraqis.
In 2008, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to the UK’s initial report under the Optional Protocol on the Involvement of Children in Armed Conflict, the UK stated:
Under the  Geneva Conventions, States Parties are obliged to bring before their domestic courts persons alleged to have committed grave breaches of the Geneva Conventions, regardless of nationality. Section 1 of the [UK] Geneva Conventions Act 1957, as amended, provides that a person may be guilty of an offence, whatever his nationality, if they commit a grave breach of any of the scheduled Geneva Conventions or [the 1977] First Additional Protocol, whether in or outside the UK.
In 2010, during a debate in the House of Commons, the UK Solicitor-General stated:
The criminal law in England and Wales is primarily territorial. That is to say, it applies to acts committed by people of any nationality who are in England and Wales, not ordinarily extending to offences committed outside its borders, even when committed by British citizens. There are exceptions, which are drawn case by case by Parliament. …
Exceptionally, some offences go further and apply to persons whatever their nationality and wherever the act was committed – for example, grave breaches of the Geneva Conventions Act 1957, torture, and the taking of hostages. As a general principle, that exceptional jurisdiction is the result of international treaty obligations. This is universal jurisdiction. It is a vital part of our law, to which we are 100 per cent committed.