On December 1st, the British government announced new proposals in the Police Reform and Social Responsibility Bill which included legal changes restricting citizens’ right to seek the arrest of officials for alleged war crimes. The move will allow a political interference with the issuing of arrest warrants, and will thus weaken the existing universal jurisdiction law with the result of ending all threats of prosecution for Israeli officials visiting the UK.The current legislation fully complies with the Geneva Convention, and Britain has a duty to seek out and prosecute those responsible for war crimes.
Britain has introduced into the Home Office’s bill measures to prevent courts from issuing arrest warrants against military and political leaders accused of war crimes.
The new coalition government previously declared it would amend regulations with regards to arresting international officials, mainly Israeli.
Under the new legislation, any arrest warrants would require to be authorized by the Director of Public Prosecutions (DPP). The amendment, as part of the Police Reform Bill, is to due to be debated in Parliament this Monday 13th December.
The announcement came amidst intense pressure from the Israeli government to ensure that Israeli suspected war criminals do not face arrest. The threat of arrest has caused several Israeli leaders and officials to cancel visits to the UK this year, and last November it resulted in the suspension of strategic talks between Britain and Israel, after the cancelation of their high-level Security Dialogue meeting in London.
Last month, Deputy Prime Minister Dan Meridor was also obliged to call off a trip to London due to war crime allegations against him over the killing of nine Turkish activists, last 31 May, during the Israeli military raid on the Turkish humanitarian boat to Gaza.
Foreign Secretary William Hague said Britain’s core principle is that people guilty of war crimes must be brought to justice. He added that the proposed legislative amendment would correct an ‘anomaly’ that allow the UK’s systems to be abused for political reasons.
The controversial change of war crimes arrest law came after the signing of parliamentary Early Day Motion 108 ‘Human Rights and the Law’, on 24 November, by more than British 100 MPs pledging to oppose the government’s plans to alter the power by British courts to apply universal jurisdiction.
The published parliamentary legislation drew heavy criticism from human rights groups. The Palestine Solidarity Campaign, which along with other NGOs, has been calling upon MPs to vote against these proposals, warned that the reform bill, if passed, will make it more difficult for courts to obtain arrest warrants on people accused of war crimes and crimes against humanity, no matter how clear the evidence is.
Currently, for a magistrate to issue an arrest warrant, serious evidence must be presented against the suspect concerned. The PSC stated that the proposed change adds a political dimension to a legal decision as the new legislation would allow the DPP, appointed and ‘superintended’ by a government minister, the Attorney General, to have a veto over whether a suspected war criminal is to be arrested.
The Attorney General would thus pressurize the DPP over the a rejection an arrest warrant if it was targeting someone or a government that is considered an ‘ally’.
Amnesty International condemned the move that sent the wrong signal, arguing that the British government would be helping suspected war criminals trying to escape from justice, and accused Britain of having gone ‘soft on crime’.
So why changing the law on universal jurisdiction?
The debate over the proposed amendment was brought up after a year of growing pressure from Israel following the issuing of an arrest warrant by a British court, last December 2009, for the arrest of ex-Foreign Minister Tzipi Livni on charges of alleged war crimes committed during Israeli offensive on Gaza.
The warrant, which came after an application made by Palestinian activists, forced Livni to cancel a visit to the UK fearing that she would be arrested due to the lawsuit against her.
The lawsuit was reportedly withdrawn following the cancellation of Livni’s planned trip to London. The Israeli government summoned the British ambassador to complain over the incident.
Facing the threat of arrest due to similar warrants, former Labour government under Gordon Brown vowed to change the law on universal jurisdiction. However, Brown failed to do so before the general elections due to resistance from then UK Justice Minister, Jack Straw.
After making an election pledge to change the current law, the new coalition government indicated last July that it would propose legal changes in the way in which arrests of accused international criminals can be made in Britain.
The Israeli government has already been pushing Britain to amend the universal jurisdiction law since 2005, after a warrant for the arrest of Doron Almog, a former Israeli military commander, was made for alleged war crimes in the Gaza strip.
Almog was the first Israeli to have an arrest warrant issued by British magistrates. Alerted to the fact that he could face arrest upon entry into the UK, he refused to leave his plane when it landed at Heathrow airport.
Almog was accused of ordering the razing of 59 Palestinian homes near Rafah, in 2002, the case was brought to a British court by the relatives of Palestinians who died in the incident.
A number of other Israeli officials have been cited for potential war crimes, including former Prime Minister Ariel Sharon, for his role in the Sabra and Shatella massacre in Lebanon in 1982. Defense Minister Ehud Barak, and former Prime Minister Ehud Olmert, amongst others, were also cited for committing war crimes against Palestinians. None of them were arrested.
That said, in order to understand the debate over changing the law it first needs to be asked: what is ‘universal jurisdiction’?
Universal jurisdiction is the principle that gives national courts the legal power to prosecute foreign nationals, suspected of the gravest universally recognized war crimes and crimes against humanity, even if these crimes are not committed in the national territory.
The right for individuals to submit a case of criminal offense for the purpose of prosecution is one of the oldest rights known to common law, even though they cannot make the arrest or bring the prosecution themselves. This right enables the courts to act quickly when a suspected war criminal is found in their country.
Universal jurisdiction recognizes that, while it is often very difficult to bring a suspect to justice in the state where the alleged crimes occurred, no country should be a ‘safe haven’ for those who commit such crimes.
Therefore, universal jurisdiction is designed to counter the dangerous risk of impunity for suspected perpetrators of grave international crimes by requiring to exercise the law over anyone, allegedly committing these crimes, who is found in its territory.
What is the current system in Britain?
Under the existing British law, private individuals can initiate criminal prosecutions, including for international war crimes, by applying to a magistrate for a court summon or an arrest warrant.
British courts are empowered with jurisdiction to prosecute all suspected war criminals, even where the crimes occurred outside the UK by someone who is not a British national.
This is because the UK pledged the international obligation to bring war criminals to justice, wherever their crimes were committed, in full compliance with the Geneva Conventions and the UN Convention against torture.
Although the Attorney General’s consent is needed for the prosecution for grave criminal offenses to go ahead, under Section 25 of the Prosecution of Offenses Act of 1985, absence of consent does not prevent the issuing of a warrant if the magistrate considers that:
• There are reasonable grounds to suspect that an offense under such legislation has been committed
• Admissible evidence has been presented which (if un-contradicted) establishes the elements of the offense alleged
• S/he has jurisdiction to issue the warrant and has ruled out any immunity of the suspect
Then, why the current system should not be changed?
Addressing this question implies looking at what are the major problems with the changes the government wants to bring. In July, the Ministry of Justice announced that proposed changes would be brought forward to amend the existing legislation to give the DPP veto power over issuing private arrest warrants against suspected international criminals visiting Britain.
In other words the DPP, under the authority of the government, appointed Attorney General, can refuse to issue an arrest warrant at their discretion. Based on a briefing released by the PSC, requiring the prior consent of the DPP who is set to examine each application for arrest warrant:
• allows for political interference to impact on the outcome;
• introduces delays, making it easy for a suspected criminal to leave the country;
• hinders the work of the police in executing an effective arrest.
The key source of problems lies in the fact that the DPP is appointed and supervised by the Attorney General, a government minister who, through the DPP, would interfere with the arrest warrant procedure in cases of alleged grave breaches.
A briefing paper to Parliamentarians, prepared by the UK Universal Jurisdiction Group last January, argued that legislating to transfer to the Attorney General the power to interfere in a criminal case, and in circumstances of such serious international crimes, is contrary to the rule of law and constitutionally unsustainable.
The decision of arresting vested in the DPP, who acts under the supervision of the Attorney General, would bring in the risk that prosecutions for universally condemned crimes such as war crimes, torture, crimes against humanity and genocide, can be vetoed for political reasons.
The proposed legal amendment will therefore undermine the effective application of universal jurisdiction when urgent action may be required to stop a suspected war criminal escaping justice. By making all applications for arrests subject to political considerations, rather than being based on legal merits, the changes to the current law will hamper the capacity of victims of grave international crimes to hold accountable suspected perpetrators who come within the UK’s jurisdiction.
In other words, such suspects may find a ‘safe haven’ in the UK, knowing that the possibility of arrest has been eliminated, whilst it should not be in the national interest for the British government to avoid pursuing suspected war criminals.
So, Britain should rather stay at the forefront of its obligation to applying universal jurisdiction. To enact legislation necessary to ensure accountability in relation to serious crimes is at the heart of any meaningful prosecution of grave breaches of international humanitarian law.
Instead of making it more difficult to arrest visiting foreign officials responsible for serious crimes, the UK should allow victims of crimes to act quickly, and enhance its capacity, under international law, to arrest those perpetrators who could otherwise enter and leave the country before police and prosecutors can take action.
In cases of serious international crimes, it has been particularly important to prevent a suspect from escaping jurisdiction, through the use of arrest warrants, while the police and/or Crown Prosecution Service make an informed decision whether to conduct an investigation.
The police are usually reluctant at relatively short notice to arrest such suspects using their ordinary powers of arrest.
The public interest of Britain, country with a proud constitutional tradition, to put an end to impunity for crimes against the international community must certainly ensure that an arrest takes effect, and the suspect is required to remain in the jurisdiction, pending a decision whether to proceed with a prosecution extradition.
Furthermore, the rule of law whose essence resides in the principle of equals being treated equally should not be neglected. To this regard, the question of ‘double standards’ comes in to play a dangerous effect in that the UK may implement international criminal law just for those the government doesn’t like at the time but not the friends of the government.
An obvious example is given by Britain’s apparent assurances to Israeli military and political leaders that they won’t be subject to a legal process if they visit the country.
Foreign Secretary Hague, long-time member of the Conservative Friends of Israel group, during his visit to Israel early last month was believed to be ‘ambushed’ by Israeli officials after they reportedly canceled a security briefing with him in response to British threat of war criminal arresting.
Hague explained his resentment over the decision by Israel since the coalition government had already agreed to revoke the universal jurisdiction law.
In a talk delivered in the House of Commons, UN Special Rapporteur, Prof. Richard Falk, said on the issue of universal jurisdiction that the discipline of international law is fundamental in restraining and containing foreign policy within the due boundaries, warnings against geopolitics to prevail over the law.
Universal jurisdiction should be ultimately part of the fight against impunity whereby politicians or military commanders from anywhere in the world should never feel able to commit war crimes and, at the same time, free to enter and exit a country while running away from justice.
The proposed reform of the existing law essentially weakens Britain’s commitment to ensuring implementation of the principles of international law and justice, and therefore its ability to act against the most heinous crimes.
The impression is, at this stage, a great deal about struggle for international justice is at stake so long as the whole idea of universal jurisdiction is jeopardized with the legal changes to debate this Monday 13th December.