Britain about to politicise the application of universal jurisdiction

Arrest warrant plans make a mockery of universal jurisdiction

Giving suspects from ‘protected countries’ immunity from war crimes arrests would turn the UK into a safe haven for suspects

Daniel Machover, 30 March 2011

The rationale behind universal jurisdiction is that certain crimes – piracy, war crimes, genocide, torture, crimes against humanity and hostage taking – are so harmful to international interests that states are entitled, and in some cases even obliged, to bring proceedings, regardless of the location of the crime and the nationality of the perpetrator or the victim. In accordance with that principle, in December 2009 a British judge granted an arrest warrant against Tzipi Livni, who had been the foreign minister during Israel’s assault on Gaza a year earlier. It was withdrawn when it emerged that she had not travelled here after all, but the Labour government, backed by the Conservative leadership, expressed outrage that the warrant had been issued.

The coalition government claims that it is in favour of applying universal jurisdiction here. But it has brought forward proposals to change the law on arrest warrants requested by private individuals in international cases that will, in practice, deny access to criminal justice to victims from those countries allied to Britain who are prepared to withdraw intelligence co-operation or use other political or economic pressure to achieve immunity for suspects.

If the law is changed, suspects from a list of “protected countries” that includes Israel, America, China, Saudi Arabia and potentially others, such as Bahrain, will visit our shores with impunity, making us a safe haven for some war criminals and torturers. This outcome would be a sick parody of true universal jurisdiction.

The offending clause in the police reform and social responsibility bill, which receives its third reading in the House of Commons this week, will give the director of public prosecutions (DPP) a veto over private applications to judges for arrest warrants in international criminal cases. Complainants will have to beg the to give them the keys to the court, even though no legal need has been demonstrated for this change. Ten applications for arrest warrants in 10 years, with two being successful, hardly suggests that judges are unable to weed out bogus cases.

Parliamentarians appear unaware that behind the visible hurdle of the DPP is an invisible and insurmountable one in certain cases, namely the attorney general, who will be the instrument that will deliver the new restricted form of universal jurisdiction that the government has in mind. The DPP’s evidence to the Commons public bill committee in January was unequivocal – he would consult the attorney general whenever he is approached to give consent to allow an application to proceed to court. The attorney general will make a judgment on the public interest test behind closed doors, knowing he or she will never be held accountable for the decision, and all the victim will know is that the DPP refused consent to an application to a judge for an arrest warrant.

The foreign secretary, William Hague, made the government’s logic clear to parliament last week (Hansard, 24 March 2011, Col 1130):

“It makes this country rather ridiculous if people can get an arrest warrant for people from other countries where there is no realistic chance of prosecution … The law as it stands has been abused in relation to visitors from several other countries. It was abused, in my view, when there was a threat to the proposed visit of Mrs Livni to the United Kingdom. She is an Israeli politician of great importance and a strong advocate of the peace process … If we want, as we do, to be able to engage in pushing forward the peace process, we need such people to be able to visit the United Kingdom.”

The abuse he has in mind seems to have nothing to do with the strength of the evidence, but everything to do with his government’s perception as to how the public interest test applies to suspects from “protected countries”. The public interest test is logically considered when deciding to charge someone, rather than arrest them, because the decision-maker wants to have a full assessment of the evidence prior to deciding whether a prosecution is in the public interest. Anachronistically in these international cases, it is not the DPP who makes the charging decision, but the attorney general, who can lawfully consult with cabinet colleagues before deciding whether a prosecution is in the public interest.

Giving the DPP the “keys to the court” actually means that the public interest decision is brought forward from the charging stage and hidden from view, and will protect a swath of suspects from arrest. If the attorney general privately tells the DPP that it will not be in the public interest for protected suspects to be prosecuted, then the DPP’s role is just a smokescreen to prevent political accountability of the attorney general.

Is it in the public interest to have a list of countries or suspects that are going to be protected from the application of universal jurisdiction? What if the even-handed application of criminal justice to all suspects would do more to enhance peace processes everywhere than granting immunity from prosecution, especially as the number of politicians actually at risk is limited and that immunities apply to some key individuals in any event.

Indeed, it is in Israel’s interests to exaggerate the impact of arrests and prosecutions of its nationals on the Middle East peace process, and Hague has fallen for this trick, just as David Miliband did before him. If the true reason for giving Israelis and others immunity is the fear of reprisals by withholding intelligence, then surely the public should know this?

Neither the interests of justice nor the long-term reputation of this country in relation to the even-handed application of the rule of law will be enhanced by the secretive administrative process being proposed to parliament. A legal case for changing the current judicial process, through the senior district judge, has not been made out and parliament is entitled to reject the proposed change on that basis alone.