The intent upon which the law of Universal Jurisdiction in the United Kingdom was developed was to ensure that those persons committing international crimes such as torture, war crimes and crimes against humanity, those crimes that have attained the status of jus cogens, in foreign jurisdictions couldn't escape justice, simply on the basis that that country did not have the appetite or ability to commence such proceedings.
As regards torture, it is certainly a crime of universal jurisdiction under customary international law. It could be argued that the prohibition of torture is itself a norm of general international law and that it has the character of a norm of jus cogens and that every state is required to investigate, prosecute, and punish or extradite individuals accused of torture who are present in a territory under its jurisdiction.
Further, not only do international norms explicitly contemplate the criminal prosecution of gross perpetrators of abuse, in some situations states are under the obligation to extradite or prosecute offenders according to the rule of aut dedere aut judicare. Recent cases before national courts indicate that crimes against humanity, to which torture is invariably included as well as being a crime in itself, are to be considered as crimes under international law and against the international community as a whole, and therefore are not restricted to the principle of territorial jurisdiction. Accordingly, if a State fails to bring prosecutions against public officials or private individuals for acts that may amount to torture, crimes against humanity or genocide through the domestic courts, this is not an indication that such impunity will remain unpunished by the wider international community.
It is therefore disappointing that when one considers the legal framework for ensuring accountability for such crimes wherever they occur, that such powers are rarely utilised to bring perpetrators to justice and thereby bring an end to impunity.
The British Courts have now ruled twice is in as many months that clearly demonstrates that the UK will not be a safe haven for those that commit such crimes abroad. The first case involved Prince Nasser Bin Hamad Al Khalifa, the son of the King of Bahrain, in relation to allegations of torture allegedly committed during the 2011 uprising in the Gulf State. The second ruling has determined that the military coup leaders and members of the Egyptian military cabinet under Field Marshall Abdel Fattah el-Sisi. In many ways these two rulings have merely confirmed what is the legal position concerning State Immunity, but it has also reaffirmed the principle that the British Courts may establish a process of justice and accountability where the national courts exercising territorial jurisdiction have failed and the International Criminal Court in The Hague has no jurisdiction.
Egypt is a stark example and a decision by the Crown Prosecution Service of England and Wales, initially based on the principle of state immunity, not to investigate or seek to prosecute those members of the Egyptian military cabinet whom could be shown to have had involvement in appalling atrocities, was deeply disappointing.
However, the High Court has in effect dismissed the suggestion that immunity, perceived or real, should be a bar to at least an investigation being carried out by the relevant department of the Metropolitan Police.
All States have a duty to investigate and prosecute where others cannot or will not and thus seek to end impunity. There are a number of countries who take these obligations seriously, such as South Africa confirming the ability to investigate and prosecute crimes that have been committed in Zimbabwe; Spain have for a number of years sought to prosecute offences arising out of conflict in South and Central America. The UK must now re-establish itself and reverse a perceived unwillingness to prosecute those persons accused of such grave crimes, particularly in the wake of the Arab Springs and in particular where perpetrators continue to grace our shores with such impunity.
The British Judiciary has clearly demonstrated that the UK has such obligations under national and international law. It has correctly determined that state immunity is not a relevant consideration when addressing the need to end impunity, and thus, it is hoped that the dossier of evidence previously supplied to the War Crimes Unit at the Metropolitan Police by ITN Solicitors in relation to the military coup leaders will now be given due consideration. This will certainly serve as a catalyst for change and may well open the door to cases being brought against those persons in positions of authority that bear individual criminal responsibility for crimes committed in Bahrain, Bangladesh, Burma, Egypt, Palestine and Syria where justice and accountability are little more than buzzwords in those countries.
The politics of the Middle East are ever complicated, perhaps more so given events over the past two years. However, political convenience should never be a consideration when one looks to justice and the thousands of victims of human rights abuses across the world. It is an unfortunate fact that political standpoints, relationships, and economics appear to carry as much weight, if not more, than the rights of those that have suffered at the hands of oppressive regimes.
Egypt has imprisoned tens of thousands of its citizens, it has persecuted many more. Independent reports suggest that the military coup leaders are responsible for the deaths of several thousand civilians. The August 2013 massacre at Rabaa al-Adawiya Square is a case in point, as documented by Human Rights Watch. It is beyond comprehension therefore that those responsible should escape any form of justice simply because the state supports the actions taken, and other states see Egypt as a strategic partner and therefore do not wish to raise it as an issue.
As noted at the outset, this is precisely why Universal Jurisdiction principles were adopted into domestic law, so as ensure that impunity can be addressed.
The order of the UK High Court confirms, that members of the Egyptian Military Coup Cabinet can be investigated for international crimes, including torture, with a view to their future prosecution. The court has confirmed that membership of the cabinet is no bar to such action being taken and therefore the door is now open to proceedings being brought.
The decision is of further importance in that it re-affirms the principle of international justice in that there are fewer safe havens for those that commit such heinous crimes but seek to evade any responsibility.
The message now being sent to the world is that the UK will stand by its obligations to international law and oppressed citizens the world over, addressing impunity where it is required to do so, and seeking to bring prosecutions against those who seek to evade justice.
The decision is not the end of the proceedings of course; the case is at the very beginning. It will need to be shown that there is sufficient evidence to justify the issuance of an arrest warrant and a trial ordered. If such charges are brought, and it is likely that they will, can the international community, in particular, the UK, maintain a 'business as usual' relationship with the Military coup leaders.
The international must now face the sombre reality that Egypt has become. What is clear is that the El-Sisi regime has no desire to embrace democracy and the rule of law. The Arab Spring has become winter, and with winter has come a more oppressive and autocratic regime than that which the 2011 revolution sought to oust. Nations that hold themselves out as bastions of human rights must no longer only seek to exercise their influence when it is politically expedient to do so. A victim is a victim, and all victims deserve the opportunity to seek justice without discrimination.
This decision is important. But it is what comes next that will determine whether it has any real meaning.