On 10 March, a delegation from Brent Palestine Solidarity Campaign met with Lord McNally and local MP Sarah Teather to discuss the government’s plan to introduce restrictions to the law on issuing arrest warrants for foreign war crime suspects visiting the UK.
Under international law, some crimes, such as torture, genocide, war crimes and other crimes against humanity, are considered to pose such a threat to all mankind that all countries have the right to arrest and prosecute individuals suspected of them regardless of whether they were committed in that country or that the suspect is resident there. This is known as “universal jurisdiction” and its purpose is to ensure that no country is a safe haven for such criminals.
In many cases, victims of the crime are unable to prosecute such persons in their own country. A recent example is the mayor of London Boris Johnson’s warning to George Bush not to visit the UK
as he may find himself subject to such prosecution following his admission of authorising the use of torture in his memoirs.
Britain, like many other countries, has laws to facilitate this and while passing through or staying in UK territory, a private prosecution and an application for an arrest warrant can be brought against such suspects. This is done by applying for an arrest warrant to the senior district judge at Westminster Magistrates’ Court. For international crimes of this nature, the level of evidence that must be produced for an arrest or prosecution is very high and a prosecution can only go ahead if approved by the Attorney General.
Over the past decade, ten applications have been presented, of which only two have resulted in the issue of arrest warrants. Both were for Israeli officials visiting the UK. In December 2009, an arrest warrant was issued for Tzipi Livni, the Israeli foreign minister during the bombing of Gaza in 2008-2009, for alleged war crimes she committed in “ Operation Lead Cast”, in which more than 1000 people died. The warrant was withdrawn two days later after Livni decided not to visit the UK and other Israeli officials have since put off visiting the UK for fear of arrest.
Livni called the arrest warrant “an abuse of the British legal system
”. The Israeli government promptly called for changes to the legal process in the UK to prevent such warrants being issued against Israelis.
The British government ceded to the pressure and while various proposals have been made since December 2009, it is currently trying to push through a proposal buried within clause 152 of the Police and Social Responsibility Bill
to restrict the issue of arrest warrants in private prosecutions. This would effectively mean that the Director of Public Prosecutions (DPP), a senior prosecutor appointed by the Attorney General, has to approve the application for an arrest warrant before it is presented to the court. The government argues that this is necessary so that foreign officials are not deterred from visiting the UK and from entering dialogue with the British government, including on peace talks,
and to ensure there is no abuse of the system. Opponents of the change, however, see no need for a change in the law: it will slow down the process and add a political element to an otherwise wholly legal process, favouring friendly regimes such as Israel and allowing the attorney general and the cabinet to interfere in a decision of the courts.
This proposal has come up against significant opposition. In November, the Palestine Solidarity Campaign (PSC) held a lobby of parliament to ask MPs to vote against the clause and for it to be removed. The northwest London Borough of Brent is represented by three MPs. Lobbies on this issue were held with Labour MPs Barry Gardiner and Glenda Jackson. Liberal Democrat MP and Minister for Children and Families Sarah Teather met with a group of her constituents in December. At this meeting, she said she would set up a meeting for the local PSC group with Lord McNally, leader of the Liberal Democrats in the House of Lords and Ministry of Justice minister. This meeting, with three activists, was held on 10 March.
Prior to the 2010 general election, all 62 Liberal Democrat MPs in the previous parliament had signed a PSC pledge not to support any change in the law. However, since joining the Coalition government, some Liberal Democrats have reneged on this. Sarah Teather, MP for Brent Central, has been to Palestine twice. The reasons and background to the change in Liberal Democrat position was asked at the meeting but was not answered.
During the meeting, Lord McNally supported the government position. He said that the government was committed to the concept of universal jurisdiction but that a “hurdle” needed to be set up to ensure the prospect of a viable prosecution before a warrant is issued and to prevent unsuccessful and abusive claims being brought. He spoke of the need to introduce a “hurdle” many times, which he claimed was neither political or had anything to do with Israel; it is not political but the government had made a conscious decision to create it “because these cases have wider political ramifications”. He also stated, with respect to Israel in particular, that such prosecutions are often a publicity stunt; this disregards the far more precarious situation of victims vis-à-vis those in positions of power and the serious violations they have suffered.
Lord McNally said that the government sees the restriction as a “reasonable test or hurdle”; the reasonable test to be applied by the DPP is whether or not there is a public interest in bringing such a prosecution. It may transpire that when considering friendly states, such as Israel, Sri Lanka and some of the Middle Eastern regimes currently in disarray, no such interest exists. Campaigners asked the Liberal Democrats to be clear on their position on this matter and whether the restriction is a question of protecting the interests of our allies. Betty Hunter, president of the PSC, attending the meeting, pointed out that there is no issue or evidence of an abuse of process and that this “hurdle” removes transparency. She stated that while it will appease Israel, it will make it difficult for all victims of crimes against humanity to have their claim heard. As well as hindering the process, there is a clear issue of access to justice involved.
Campaigners at the meeting also questioned the independence of the DPP in his decision-making, given that he would have to defer to the attorney general and the government. This compromises the independence of the judiciary and allows the government to interfere, thereby allowing such decisions to be politically motivated. Lord McNally felt that the DPP’s position would remain independent; however it is evident that the restriction introduces a scope for hidden, political interference that campaigners fear will appease powerful states. Unfortunately the government’s position, that there should be a realistic prospect of viable prosecution before an arrest warrant is issued, confuses two parts separate of the process – arrest and prosecution – and completely skips the stage of police interviews with the suspect. The prosecution itself may be politically motivated but the bases for an arrest warrant must be solely on legally valid evidence.
The bill is currently at its final stage in the House of Commons and will then pass to the House of Lords. With respect to what will happen at that stage, Lord McNally stated that this type of clause is very much of interest to members of the upper house and while it has been little debated in the Commons, it is likely to be considered far more carefully in the Lords. He suggested that amendments are tabled to change the proposal. Campaigners, however, want to see the clause removed altogether. The government’s arguments and grounds for this change are clearly politically motivated.
Henry Kissinger, against whom an unsuccessful arrest warrant application was submitted and a strong opponent of universal jurisdiction laws, has long argued that such laws undermine the sovereignty of states. In this particular case, it appears that the British government is deferring to its foreign allies and their interests to push through this restriction in their favour. Betty Hunter said, that in light of the current upheaval in the Middle East and the UK’s poor record on upholding Palestinian human rights, “it was up to the British government to seize this historic moment and take a more progressive viewpoint on matters of justice”.