UK Supreme Court judgment on torture by non-state armed groups
Important: The judgment discussed below is part of ongoing criminal proceedings in the UK, which are subject to reporting restrictions. The UK Supreme Court has published its judgment in a redacted, anonymised form, and it is discussed on that basis below. Publication of further details of the case could prejudice the ongoing proceedings and could contravene Section 4(2) of the Contempt of Court Act 1981.
The UK Supreme Court has confirmed that members of non-State armed groups may be prosecuted for crimes of torture under UK and international law.
In a judgment ( UKSC 51) issued on 13 November 2019, the Court found that article 1 of the UN Convention Against Torture applies to those acting on behalf of non-State armed groups when those groups exercise functions normally exercised by governments over their civilian populations.
The Court reached its finding on the basis of a detailed analysis of international and domestic law. The decision is an important reiteration of the international prohibition on torture and its application to non-State armed groups.
REDRESS intervened in the case. The judgment and the Supreme Court’s press summary are available here.
The appellant, TRA, was charged with one count of conspiracy to commit torture and seven counts of torture. The substantive offence alleged in each case was that of torture contrary to section 134 of the Criminal Justice Act 1988 (“CJA”), which implements the UK’s obligation under the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) to prosecute foreign crimes of torture on the basis of universal jurisdiction. The charges relate to events that took place outside the UK.
The appeal was concerned with a narrow but important point of law: what does “’person acting in an official capacity” mean in section 134(1) of the CJA and article 1 of UNCAT?
REDRESS was granted permission by the Supreme Court to participate in the proceedings as an intervener. It was represented pro bono by Sudhanshu Swaroop QC and John Bethell of Twenty Essex Chambers, and by Hogan Lovells (Alex Sciannaca, Peter Hood, William Foubister and Lucy Kelly).
The Supreme Court issued its judgment in redacted form, omitting the name of the appellant and other identifying features, as a result of reporting restrictions applying to the ongoing criminal proceedings.
The majority judgment (Lord Lloyd-Jones, with whom Lady Hale, Lord Wilson and Lord Hodge agreed) held as follows: the correct interpretation of article 1 of UNCAT and section 134 of CJA is that they include conduct by a person acting in an official capacity, on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. The Court reached this conclusion based on its interpretation of the ordinary meaning and the object and purpose of the relevant provisions, and emphasised that torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community. The Court formulated the principle as follows:
“‘A person acting in an official capacity’ in section 134(1) of the Criminal Justice Act 1988 includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.”
The Supreme Court also held that:
- The exercise of governmental functions is a core requirement. Contrary to the Court of Appeal’s formulation, purporting to exercise such functions would not be sufficient.
- Governmental functions should be distinguished from purely military activity.
- To identify the exercise of governmental functions, it is necessary to look at the reality of the particular situation and to consider whether, at the relevant time, the entity in question had a sufficient degree of organisation and actual control over an area and whether it exercised the type of functions which a government or governmental organisation would exercise.
- In doing so it will be necessary to make allowance for the particular conditions which may make administration difficult and for different views of appropriate structures of government. The question will be whether the entity has, for a time, established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi-official powers, as opposed to a rebel faction or a mere military force.
- The fact that the long-term survival of an entity may be an unlikely prospect should not prevent it from being considered a de facto government provided that it has effectively established itself as such.
- The continued existence of a central government would not prevent an entity exercising such authority from being a de facto government in respect of the territory under its control.
In the present case, whether the appellant acted in an official capacity as alleged in the indictment was found to be a matter for the jury. However, since the hearing in the Court of Appeal, the prosecution had served a further memorandum from its expert witness regarding the nature of the control exerted by the appellant’s non-State armed group over the relevant territory. In light of this, and the Supreme Court’s modification of the test adopted by the Court of Appeal, the case would be remitted to the Judge for further consideration.
A dissenting judgment (Lord Reed) held that the phrase “a public official or other person acting in an official capacity” does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country. He reasoned that “the words ‘or other person acting in an official capacity’, would, in their ordinary meaning, extend to persons who were not public officials but who were acting in a similar capacity, by reason for example of the outsourcing of public functions to private agencies. The core idea seems to me to be that the person in question is acting on behalf of the state.”
Charlie Loudon, International Legal Adviser at REDRESS, said: “Many crimes of torture are carried out not by governments but by non-state armed groups such as ISIS and the Taliban. States such as the UK are required under international law to prosecute torturers that are on their territory, regardless of where the crimes took place. Today’s decision is welcome confirmation from the UK’s highest court that the duty to prosecute can apply where the torturer was a member of a non-state armed group.”
REDRESS is an international human rights organisation that uses the law to seek justice and reparation for survivors of torture, to combat impunity for governments and individuals who perpetrate torture, and to develop and promote compliance with international standards.
For more information, please contact Eva Sanchis, REDRESS’ Head of Communications, on [email protected], +44 (0) 20 7793 1777 or + 44 (0) 7857 110076 (out of hours).
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