Students of security policy will have been following the discussion on the BUCSIS Blog as to how the law can, and cannot, be used to bring to justice those guilty of war crimes.
This issue matters to all students of public policy in any democratic state because the ultimate purpose of security policy is to make liberal democracy safe by bringing to justice those who use the powers, weapons and technical resources of the modern state to annihilate real or imagined opponents under the cover of war.
This is what countless genocidal dictators have done in the 20th century, Hitler, Stalin, Mao Zedong and Pol Pot to name but a few.
Before 1991 had any of them or any of their murderous helpers come to Britain, they could not have been put on trial because their crimes were not committed against British citizens, not committed in Britain — and they themselves were not British.
All liberal democracies are made more secure if none of them harbour war criminals.
After the passing of the War Crimes Act in 1991, many people believed that Britain had ceased to be a safe haven for war criminals.
This belief was confirmed by the fact that on 18 July 2005 an Afghani ‘warlord’ by the name of Faryadi Sarwar Zardad was convicted by a British court for what were clearly war crimes, including the abduction, imprisonment and torture of his victims. Zardad had been unwise enough to regard London as a safe haven.
We were told, at the time, that this conviction was secured under the 1991 War Crimes Act (and although this may have been an error, Zardad was clearly convicted under some other law which had the same effect). The ‘Independent’ reported that he was the ‘first foreign national to be convicted for torture offences committed abroad’. Indeed, the Director of Public Prosecutions at the time (Sir Ken Macdonald) commented: ‘Zardad’s actions and those of his men were horrific. Through our witnesses we were able to tell the jury of his reign of terror’. The DPP added: ‘By securing this conviction, we have shown there is no hiding place for torturers and hostage takers’.
However, on 8 April 2009, the High Court on 8 April 2009 allowed four Rwandans accused of appalling acts of genocide to walk free in London because, the Court said, they could not be extradited to Rwanda nor could they be tried in Britain.
On 18 May 2009 three leading lawyers (Lord Falconer, Sir Ken Macdonald and Baroness Kennedy) wrote to The Times about this. They were plainly perplexed at the above decision and argued that there should be a legal remedy to this problem.
But they did not explain why existing legislation was deficient. Since their letter had no follow-up we still lack a public explanation.
Sir Ken Macdonald has responded to the BUCSIS Forum discussion by pointing out that the War Crimes Act did not establish a more general principle and applied only to the (extensive) territories controlled by the Third Reich during the Second World War.
He did not explain, and has not explained, how Faryadi Sarwar Zardad who was self-evidently a war criminal had been successfully convicted.
What the position today seems to be is that it is not possible to try in British courts those responsible for war crimes committed outside the context of the Second World War and before 2003. The Rwandan massacres which led to the murder of some 1 million people in 1994 represent a gap in lawfulness.
This ought to be seen as a totally unacceptable state of affairs. However, it might make good sense if our lawyers were to explain precisely what the current legal position is and how it might best be remedied. They are failing to do so at the moment – at any rate in public.
Whether the issue at stake is how we should deal with suspected war criminals or suspected terrorists under control orders, the laws which seek to make our democratic way of life baffle many well-informed citizens who, taken together, create public opinion.
Without their support, however, it will be hard to convince our politicians there is a real need to change the law.