The Liberal Democrats have spent the past decade pointing their accusing finger at Labour, questioning the party’s human rights record. In some areas, they were right to have done so. But now they are in power. Now they have to make the big decisions on foreign policy. And, on their first test, they have failed.
In a recent speech to Lib Dems Friends of Israel, Nick Clegg declared his support for the removal of an individual’s right to obtain an arrest warrant for people accused of the most serious humanitarian crimes. It is proposed that before a warrant can be issued, consent must first be obtained from the Director of Public Prosecutions. This is a fundamental change to our constitutional right to bring those accused of war crimes before the courts.
Clegg’s premise for the removal of this right is factually and legally wrong. The Deputy Prime Minister said an arrest warrant is obtained on the basis of flimsy evidence in front of a local magistrate. This is not the case. An arrest is always obtained from the most senior district judge in the country sitting in the central London Magistrates Court. The test for issuing a warrant has to be stringent and the evidence produced rightly needs to stand up to scrutiny. In the most recent cases where arrest warrants have been issued, the evidence of involvement in suspected war crimes atrocities was overwhelming.
By removing the right to apply for an arrest warrant, the effectiveness of universal jurisdiction is significantly undermined.
History is littered with atrocities committed by tyrants in their own countries and abroad. Those responsible were free to act with impunity in the knowledge that they would never be brought to justice. The murder of six million Jews during the Second World War brought an end to this immunity.
The principle of universal jurisdiction gives power to the state or an individual to claim criminal jurisdiction over persons alleged to have committed crimes outside the boundaries of the state. Since the Second World War, the United Nations has instituted a number of International Treaties. Most important were the Geneva conventions that finally codified the offence of war crimes. Over the past two decades, we have seen the UN, by direction of the Security Council, bring to justice some of those responsible for atrocities in Rwanda, the former Yugoslavia and Sierra Leone.
In recognising that impunity exists, mainly when the national authorities of countries affected by the crimes fail to act, it is important that the criminal justice system of other nations can step in to prosecute the crimes on behalf of the international community and award reparations to victims.
Up to now, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law. An example of this was highlighted by Kenneth Roth, who argued that Israel’s prosecution of Adolf Eichmann in 1961 was a recognition of universal jurisdiction. Another example was Israel’s application for an arrest warrant for Yasser Arafat in a Belgium court. In the United Kingdom, there was the arrest of former Chilean dictator Augusto Pinochet. Last March saw the arrest of Ejup Ganic, the former president of Bosnia who is accused of war crimes. Following a request from the Serbian government, he was detained at Heathrow Airport.
Under the current proposals, a private prosecution could still take place if the DPP consents to an arrest warrant. If he does not, it is unlikely that a person would voluntarily surrender to a court. As someone cannot be tried in their absence unless they have first been charged, the effect would be to end to an individual’s right to bring a private prosecution against a non-UK national for an offence committed outside the jurisdiction of this country.
The power to issue an arrest warrant has always been with a judge. The Government, through its appointed officer, the DPP, will now have to consent – effectively assuming that power. There is no guidance as to what test should be applied. It is unclear whether it will be same as the test for initiating a prosecution. If it is, it would be difficult to obtain consent and most – if not all – applications will be unlikely to succeed.
Like many of the recent major constitutional changes, the Government intends to rush this through Parliament. It is essential that the question of arrest warrants under universal jurisdiction should first go before a select committee for full consultation before any changes are made. The current proposals are seriously flawed. No consideration has been given to the test the DPP should apply before giving consent to an application for a warrant.
One answer is not to seek the consent of the DPP before applying for an arrest, but to give notice to the prosecution of the application and thereby given them an opportunity to make representations before the court. This would allay any fears that the court is being misled or that there are hidden motives for obtaining an arrest warrant.
Mark McDonald is a barrister and vice-chair (policy) of Labour Friends of Palestine and the Middle East