Human Rights Watch: Don't Shackle UK Courts on War Crimes and Torture

Dear Prime Minister

We write in light of recent comments in the media and in Parliament suggesting that the government is looking into possible changes to British law, which would curtail the issuance of arrest warrants based on private applications, notably on charges of grave international crimes such as war crimes and torture. Human Rights Watch opposes any such change to the law and believes that placing restrictions on, or eliminating, private arrest warrants for international crimes could have serious implications not only for the United Kingdom’s commitment not to be a safe haven for suspects of the most serious crimes, but also for the very credibility of the values and principles of international justice which the UK strongly supports.

It is still unclear what the proposed legislative amendments will be. One alternative mentioned in the press is to impose the Attorney General’s consent prior to issuing arrest warrants in cases involving grave international crimes committed abroad. Last time the law came under attack, in 2005 [1], the British government publicly evoked the possibility of eliminating the arrest warrant procedure entirely for this category of crimes. The procedure currently enables victims and private parties, in the absence of a police investigation, to present prima facie evidence that a suspect may have committed a crime for which there is jurisdiction in the UK directly to a senior judge, who may in turn issue an arrest warrant on the basis of this information.

In the face of renewed criticism of the arrest warrant procedure, it is important to recall that it serves a number of important functions.  First, it enables the British judicial system to act quickly and arrest promptly a suspect of grave international crimes who is present in the UK. The police and Crown Prosecution Service usually decide whether to investigate a complaint and issue an arrest warrant. But this decision, which involves careful weighing of the evidence available and the public interest, may take weeks or even months. An arrest warrant, which can be granted in a matter of hours provided the judge is satisfied that there is jurisdiction, no immunity, and a prima facie case against the suspect, gives time to the police and prosecution services to make an informed decision about a possible prosecution. This is essential to ensure that perpetrators of the worst crimes known to humanity cannot come at their leisure to the UK, simply making use of the practical reality that it takes time to build a case against them. Furthermore, the arrest warrant procedure provides an important access to justice for victims who have nowhere else to turn. In certain European countries, such as France and Spain, our research has shown that private prosecutions are pivotal in initiating cases involving war crimes, crimes against humanity or genocide committed abroad. [2] In our experience, prosecution services are rarely proactive in seeking to investigate these crimes. There are several reasons for this, including limited capacity and a lack of prioritization of these cases.  In the UK, for example, despite the existence of universal jurisdiction laws for war crimes, torture, crimes against humanity and genocide, and information provided by the media and NGOs that suspects of such grave crimes are present on British territory, only two such cases have ever been brought to trial. [3]

The ability of the judicial system to respond swiftly to the presence of a suspect and the direct access of victims to magistrates are therefore crucial to the effective exercise of universal jurisdiction. Human Rights Watch is concerned that amending or eliminating the current procedure would damage the ability of the British judicial system to effectively implement the country’s obligations under international law to prosecute war crimes and torture. [4] and would thus enhance the risk that the UK be a safe haven for war criminals.

Some contend that the arrest warrant route is being “abused” by groups with a political agenda. To date, however, there is no evidence that the procedure allows for such abuses. Indeed, there is no information suggesting that senior judges have issued arrest warrants lightly. [5] Of course, it is impossible to entirely avoid individuals’ efforts to “instrumentalize” judicial mechanisms to make political statements or for other private interests. As a matter of fact, this also happens regularly in national judicial systems in relation to ordinary crimes, and civil cases. But, the arrest warrant is not issued by these individuals but by senior judges acting impartially on the evidence in front of them.  The Crown Prosecution Service can discontinue the proceedings initiated by a private applicant based on its standard two tests of determining whether a prosecution is to continue: that there must be evidence to provide a realistic prospect of conviction, and that the prosecution is needed in the public interest. In the meantime, the suspect subject to an arrest warrant enjoys all fair trial guarantees provided by British criminal law (including a right to bail and a right to appeal the granting of the arrest warrant).

The government should not be embarrassed by decisions taken by senior judges and must instead stress that the judiciary is independent of the executive. The only tenable response compatible with respecting an independent justice system is to make clear that the government cannot interfere in judicial decisions and that it has full confidence that the due process guarantees of a long established judicial system like the UK’s make it unlikely that politically motivated complaints would survive the scrutiny they receive at the earliest stage in this system. A further point to make is that, if there is strong evidence that grave international crimes were committed, then the rule of law and equal application of the law to all demand that prosecutions proceed. Indeed, when it comes to war crimes and torture, the UK is under a positive obligation to prosecute, regardless of nationality.

By contrast, the government’s public apologies in the wake of the issuance of an arrest warrant against Tipzi Livni, the former Israeli Foreign Affairs Minister, and quick assurances that British law would be changed, sends a problematic message: namely that the government seeks to interfere in individual cases before its domestic courts. There is profound downside of invoking as a “solution” a veto power by the Attorney General (who is a member of government), in order to ensure that the “public interest” be taken into consideration as early as possible. Should this or similar measures actually be formally proposed, the government would be effectively suggesting a selective application of the law by giving itself the ability to block politically inconvenient procedures. In these conditions, the very credibility and legitimacy of universal jurisdiction and international justice for the most serious crimes are at stake.

International justice, including the exercise of universal jurisdiction by national courts, has been facing intense criticism recently, and could be further undercut by a change of the British law. In the wake of criminal complaints in France and Spain directed at the leadership in Rwanda, the authorities in Kigali took up a campaign against universal jurisdiction within the African Union. This campaign was stepped up following the issuance of an arrest warrant against Sudanese President al-Bashir by the International Criminal Court (ICC), and featured increased unease at the fact that all situations currently investigated by the ICC are in Africa. In the context of this campaign, there has been vocal criticism by some in Africa that the application of international justice has been uneven to date.

While these arguments are part of an effort to delegitimize accountability efforts to some extent, and they ignore the work of the International Criminal Tribunal for the former Yugoslavia to prosecute serious crimes in Europe, it remains a reality that officials from, or supported by, powerful states are much less susceptible to prosecutions for alleged grave international crimes. The current discussion in the UK feeds the perception of a double standard; Western countries may be willing to apply their universal jurisdiction laws against citizens of “weak” countries but not against citizens of powerful or friendly states. Belgium and Spain are widely seen as having changed their universal jurisdiction laws as a result of political pressure by Israel and the United States. This unevenness calls into question the legitimacy and fairness of the practice of universal jurisdiction and can make it appear as a political tool rather than an instrument of justice.

The past 15 years have witnessed major progress in seeking accountability for grave international crimes, through international tribunals and the increased use of universal jurisdiction laws. We commend the UK’s role in supporting and taking part in these developments. But the mechanisms of international justice are still fragile. Should it fuel perceptions of double standards, by taking steps to limit the impartial application of universal jurisdiction, the UK will weaken the very rule of law values that it supports. Selectivity comes with a high price. The legitimacy and continued strengthening of international justice is dependent on countries like the UK being committed to upholding international law in an evenhanded manner and with full respect for their national judiciaries’ independence.

Implementing international law obligations to combat impunity can be a difficult commitment, which requires steadfastness, determination and, at times, courage in the face of political embarrassment. A lot is at stake; victims who suffered grave abuses deserve a strong and effective international justice system.

We thank you for your attention to this important matter.

Yours sincerely,

Tom Porteous
London Director

Richard Dicker
International Justice Program Director

Cc: Rt Hon David Miliband MP, Secretary of State for Foreign and Commonwealth Affairs
Cc: Rt Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice
Cc: Rt Hon the Baroness Scotland of Asthal QC, Attorney General

[1] After an arrest warrant had been issued for Israeli General Doron Almog.

[2] “The State of the Art: Universal Jurisdiction in Europe,” Human Rights Watch, July 2006, http://www.hrw.org/en/reports/2006/06/27/universal-jurisdiction-europe.

[3] Nazi war criminal Anthony Sawoniuk in 1999 under the War Crimes Act 1991 and Afghan torturer Faryadi Zardad in 2005 under the Criminal Justice Act 1988 and the Taking of Hostages Act 1982.

[4] As a state party, the UK is legally bound to “prosecute or extradite” suspects of grave breaches of the four Geneva Conventions (entered into force in 1951) and their first additional protocol (entered into force in 1978), as well as suspects of violations of the Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force in 1987).

[5] Indeed, we are aware of only two such warrants that have ever been issued to date, one for the General Doron Almog in 2005 and one for Tipzi Livni in 2009.