Rogers and Todorov: How does the new UK law define gross human rights abuses?
Tuesday, August 1, 2017 at 8:28AM
Richard J. Rogers and Sasho Todorov in Bribery Act 2010, Criminal Finances Act, Gross Human Rights Abuse, Sergei Magnitsky

In the prior post, we introduced readers to the UK's Criminal Finances Act, a new law that expands remedies for UK prosecutors to use against gross human rights abuses. But what are gross human rights abuses?

There are three conditions for acts to be considered gross human rights abuses or GHRA under the new law:

(i) prohibited conduct against a protected person

(ii) for prohibited motivations, and

(iii) the involvement of public officials performing official duties.

"Protected persons" are those who seek either to expose illegal activity carried out by a public official or a person acting in an official capacity, or to obtain, exercise, defend or promote human rights and fundamental freedoms.

The Criminal Finances Act provides clear protections for whistleblowers, as well as journalists and human rights defenders. Prosecutors are likely to be especially focused on anti-corruption activists, as these provisions were inspired by the murder of Sergei Magnitsky.

While the new law doesn't define “human rights or fundamental freedoms,” the European Convention on Human Rights is a good source for guidance, as it was directly incorporated into the U.K.’s domestic law through the 1998 Human Rights Act. (The UK specifically chose to incorporate voluntary articles of the Convention that protect the right to an education, peaceful enjoyment of one’s property, and elections.)

"Prohibited conduct" includes not just torture, but also the less serious category of "cruel, degrading, or inhuman acts." Imprisonment of activists is likely to be an area of risk for gross human rights abuses liability. Examples found by courts of cruel, degrading, or inhuman treatment involving imprisonment include caning, short-term food, sleep, and sensory deprivation, insufficient sleeping quarters, cramped cells and unhygienic facilities.

Land grabbing is another area that will likely be a common source for potential GHRA liability. The destruction of another’s source of living was found to be a crime on par with torture and other serious crimes against humanity by the Saddam Hussein trial court.

This means that violently evicting farmers, persecuting land activists for resisting takeovers, or destroying indigenous people’s source of living by felling forests may amount to degrading treatment, at the very least.

Finally, denial of cultural or educational rights, such as Syria’s banning of Kurdish cultural celebrations during the mid-2000s, may also be considered degrading treatment.

While the term “public official” is undefined by the Criminal Finances Act, Parliamentary debate makes it clear that current definitions established by UK statutes, such as the Bribery Act, will likely apply. These are roughly analogous to those of the FCPA.

However, the conduct (GHRA) must carried out in consequence of the victim engaging in protected activity. Practically speaking, this means that GHRA will likely be limited to retaliatory conduct.

The last required element is that the conduct must involve public officials "performing official duties" in some fashion. This includes the direct commission of, instigation of, or consent or acquiescence to, the prohibited conduct by the official.

The UK Bribery Act defines “official duties” as the use or omission of an official’s power that stems from their position, be it legal or extra-legal. This creates extensive liability when taken into conjunction with the Bribery Act’s broad definition of “public official.” For example, the actions of a politician in the guise of being a private business owner may entail the use of his political authority, which could be considered the performance of “official duties.”

In the next post, we'll talk about the wide net the Criminal Finances Act casts outside of the direct commission of gross human rights abuses.

Our prior post about the UK Criminal Finances Act is here.

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Richard J. Rogers is a founding partner at Global Diligence LLP, a London-based law firm specializing in international law and human rights compliance. It offers a wide range of services to companies operating in high-risk zones to help ensure compliance with international standards. He can be contacted here

Sasho Todorov is a rising third year Vanderbilt law student and an intern at Global Diligence. He can be contacted here.

Article originally appeared on The FCPA Blog (http://www.fcpablog.com/).
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