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CPS : The Counter Terrorism and Special Crime Division of the Crown Prosecution Service - Successfully concluded war crimes prosecutions since 2001

Included in the list below is a brief summary of the cases which have been concluded since 2001.

Faryadi ZARDAD

After the departure of the Russian forces from Afghanistan the Afghan clans were unable to agree a basis for power sharing and civil war took place between 1992 and 1996; the main conflict was between two rival factions: Hezb-e-Islami and Jamiat-e-Islami.

Faryadi Zardad was a commander within Hezb-e-Islami and had approximately 1000 men under his control. He controlled a military base in Sarobi, with a checkpoint strategically positioned at an important point in the road, through which all the traffic between Peshawar, in Pakistan, and Kabul, Afghanistan, would pass. Control of this checkpoint enabled Zardad and his soldiers to steal goods and money from people passing through; to prevent supplies getting through to his enemies in Kabul; and to exchange prisoners taken by rival groups.

He and his soldiers would beat, wound, torture, shoot and kill civilian travellers. They would detain and imprison them. They would hold for ransom or exchange civilians taken at the checkpoints or elsewhere.

When the Taliban took over control of Afghanistan, Mr Zardad fled to Pakistan, from where he made his way to the UK. He applied for asylum in the UK in September 1998.

In July 2000 the BBC Newsnight programme included an interview conducted by John Simpson with Faryadi Sarwar Zardad.

In May 2002 Zardad was arrested by police at his home in London. He was interviewed and bailed whilst police carried out further investigations. In July 2003 he was charged with offences of torture and hostage taking and remanded in custody. There was no application by Afghanistan for Mr Zardad's extradition to Afghanistan.

There were a number of legal challenges during trial.

  1. Challenges to ID procedure
  2. The following ID procedure was carried out:

    • A video ID process based on images of Zardad and others taken in 2003
    • In event of recognition or partial recognition by this 1st process, more contemporaneous material (a compilation of 11 stills from a video made in 1996) was shown

    The Defence said this process was unfair for a number of reasons including:

    • Dissimilarity in appearance
    • Zardad alone appears in both phases and thereby drawn to viewer's attention

    However they accepted that the ID procedure carried out in good faith and that they had been aware of it and did not object at time.

    The trial judge, Mr Justice Treacey, rejected all defence arguments and found that the Crown had employed the best methods in the circumstances.

  3. Legal precedent
  4. The Defence contended that Mr Zardad was not a "public official or person acting in an official capacity" for the purposes of section 134 of the Criminal Justice Act 1988: it was not sufficient for the prosecution to claim that because Mr Zardad was a commander in a group which exercised control over a part of Afghanistan he was a de facto "public official". They argued that the prosecution must show that either there was no state authority in Afghanistan at the relevant time in which case other entities could exercise quasi-governmental authority; or, if there was a state authority (as was the case here – a government existed in Kabul and it had a recognised Ambassador to the United Nations), the prosecution must show that Mr Zardad owed his position to that authority.

    The prosecution argued that Mr Zardad held a post as a de facto public official because his faction in the civil war controlled an area of Afghanistan in such a way as to amount to a governmental authority, irrespective of the existence of a formal government authority based in Kabul. (The prosecution relied on the decision of the CAT in Elmi v Australia, Communication No 120/1998 and of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Furundzija (10 December 1998: IT-95-17H-T).)

    In the course of the first trial Mr Justice Treacy gave judgment on the circumstances within which a person can be said to be "a person acting in an official capacity" - in other words a de facto public official - as set out in Article 1 of the Convention and UK implementing legislation. This judgment is significant because this was the first case of its kind under English law and because so few other judgements by courts of other States Party to the Convention have been reported. There was therefore no existing national precedent to assist the judge in interpreting the Convention and implementing legislation. Mr Justice Treacy found that, for the purpose of the elements of torture as set out in Article 1 of the Convention and section 134 of the Criminal Justice Act 1988, the reality of any particular situation should be examined for sufficient evidence that an organisation has actual control of an area and exercises the type of authority which a government would exercise; Merely to apply that test advocated by the defence would not reflect the realities of many a country and would leave a substantial gap in the implementation of section 134 of the Criminal Justice Act 1988.

There were two trials. The first lasted seven weeks and in November 2004 the jury were unable to reach a verdict. It was decided that a retrial was appropriate.

The retrial lasted six weeks and on 18th July 2005, Zardad was found guilty by a unanimous verdict of Conspiracy to Torture and Conspiracy to take Hostages. He was sentenced to twenty years imprisonment with a recommendation that he should be deported when he has served his sentence.

Zardad appealed his conviction on two grounds: that there was a misdirection in relation to a previous statement made by two witnesses; and if there was a such a misdirection the convictions were unsafe. His appeal was dismissed in February 2007.

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