Monday, October 01, 2007

Is the Burmese military junta violating UK law?

The unfortunate recent events in Burma/Myanmar have shown to the world what have been happening there for a while. It is probably more unfortunate that in few weeks/days the media will find other source of sensational news and the people of that country will be left alone, again, to face whatever the government has for them. Whether gross violation of human rights are actionable in any court of the planet following the universality principle of jurisdiction in criminal cases, is still debatable (there are loads of publicists that would say definitively yes, and many cases would prove that, but the humans rights violations observed in the last few years for some super-powers seem to indicate that it all depends on politics and not law), but we know for sure whether certain activities are criminal in some jurisdictions, as England.
According to UK’s Computer Misuse Act 1990, Section 3, modified by the Section 36 of the Police and Justice Act 2006
(1) A person is guilty of an offence if—
(a) he does any unauthorised act in relation to a computer;
(b) at the time when he does the act he knows that it is unauthorised;
(c) either subsection (2) or subsection (3) below applies.
(2) This subsection applies if the person intends by doing the act—
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer;
(c) to impair the operation of any such program or the reliability of any such data; or
(d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.
(3) This subsection applies if the person is reckless as to whether the act will do
any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.
(4) The intention referred to in subsection (2) above, or the recklessness
referred to in subsection (3) above, need not relate to—
(a) any particular computer;
(b) any particular program or data; or
(c) a program or data of any particular kind.
And since following ss.36 (6) the maximum term is 10 years in jail, the offence is an extraditable offence.
Going back to the situation in Burma/Myanmar, it has been widely reported that the military junta has created some time ago an advanced cyber-warfare department within its own secret police and that department has spread viruses before and during the current crisis. Since many dissidents live in the UK, by sending them those viruses it is clear that either the government or its agents are commiting the actus reus tipified in the now modified Computer Misuse Act 1990, but “[c]an a State commit a crime? Definitely, Yes!” asks and answers Alain Pellet. It can be argued that the concept of crimes committed by states refers to the violation of certain acts that has consequences in international law and not in domestic penal law as the CMA 1990 would be, but there is also an argument that states might be subject to the jurisdiction of domestic courts when acting not as states but as particulars, as decided in Republic of Argentina et al v Weltover, Inc, et al, 504 US 607, and it would be interesting to find the explicit justification for a state to create and disseminate computer viruses that can, and normally do, affect people beyond those originally targeted. Regarding the immunities that the agents of the state have by carrying out official acts, and without much attention to the International Court of Justice decision in the Congo v Belgium case, in England the recognition of universal jurisdiction in general and jurisdiction on criminal cases in domestic courts by striping state agents of their immunity for official acts was clearly established by the House of Lords in Re Pinochet. So, if we assume that in an information society spreading viruses constitutes either an international crime because of being a type of conduct considered criminal by the concert of nations or criminal at domestic level but committed by either states acting as persons or state agents deserving the lifting of their immunities, the Burmese/Myanmar’s junta would be liable for the crimes created by the CMA 1990.

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