Julian Huppert writes… The future of universal jurisdiction

The Police Reform and Social Responsibility Bill about to complete its ride through the Commons, contains a range of items under ‘social responsibility’. One of these relates to changes to the way arrests for crimes under Universal Jurisdiction would be implemented (Clause 152). These are crimes such as genocide, torture, piracy and hostage taking, where the UK asserts the right to try people regardless of where the crime may have taken place.

This has been controversial in the past, particularly with the attempted arrest for private prosecution of Tzipi Livni, the former Israeli Foreign Minister, in 2009. She avoided arrest by not coming to the UK.

I believe that universal jurisdiction is a vital part of our legal system. It is essential that our courts have the power to prosecute those accused of some of the most serious crimes imaginable.

There is a concern expressed that our current rules cause a perception that visitors to this country might be at risk of arrest for private prosecutions, for purely vexatious reasons designed to score political points.

I remain unconvinced that there is a problem that needs fixing. If there is such a perception around vexatious arrests, it is not based on evidence, as only two warrants of this nature have been issued by the court in the past ten years, out of a total of only ten applications.

Nonetheless, the Labour Government decided to take action on this, and originally suggested that they would get rid of the power of private prosecution completely. However, this is an important safety net that must be there, if the police and Crown Prosecution Service fail to act. They then suggested allowing the Attorney General, a senior Government Minister, to have the right of veto over all such arrests. I believe this would unacceptably politicise the decision making process.

The Coalition Government (after considerable Lib Dem pressure) has proposed instead to make the Director of Public Prosecutions (who is not a member of the government, or indeed political in any way) consider whether an arrest would be appropriate, based on the evidence provided. The DPP is not a member of the government, and would be able to make decisions fairly and independently. This is clearly a better solution than either of those previously described, although we are still not persuaded even this needs to be done!

However, there is a clear majority of support for the proposal in the House, and so in my efforts on the Bill Committee that was dealing with this, I focused on ensuring that there will be a timely and fair process by which the Director of Public Prosecutions (DPP) can perform his role.

In evidence to the Bill Committee, the DPP, Keir Starmer QC, went some way to mollifying my concerns on this matter. It seems clear that in order to ensure timely decisions, there will be a specialist team set up within the DPP’s office; that that team will accept evidence ahead of time so that cases can be assessed before the suspect travels to the UK; and that when time is short, the DPP will apply the ‘threshold test’, consenting to arrest if satisfied that enough evidence would become available within a reasonable period of time.

Under both the current system and the proposed new one, the Attorney General would have the ability to step in and discontinue the prosecution immediately after arrest – this applies to all private prosecutions. I think it would be harder for an Attorney General, who was keen to avoid prosecuting someone to discontinue the prosecution immediately, if the DPP had just concluded that there was a good prospect of a conviction, than under the current system. It may in fact be easier to get a prosecution, rather than just an arrest, under the new system than the old one.

My own speeches on the issue, explaining these issues in greater depth, are available at the Parliament and TheyWorkForYou websites.

The Lib Dems will continue to press for additional and more explicit safeguards to ensure that cases brought against those accused of the most serious crimes are given fair and rapid treatment by the DPP. We have also called, and will continue to call, for the police and the CPS to play their part and to investigate actively allegations of these most serious crimes.

It is clearly better if the state prosecutes war criminals, rather than relying on private individuals to do the work for it.

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7 Comments

  • ‘I believe that universal jurisdiction is a vital part of our legal system.’

    Well, although it is a different kettle of fish, libel shows up some of its inherent problems, so I think that treating it as some article of faith is dangerous.

    Problem is however that whilst, indeed there is little evidence of abuse of process, the scope for abuse is no doubt real. It is, of course A Good Thing that tyrants who maintain power through brutality and substantial violence should be held to account. But if that is the aim then people should hold back from using the same process to make a political statement (and let’s not kid ourselves that it is much else) against democratically elected politicians who find themselves running a war.

    Universality only works if there is universal acceptance that there is a world of difference between Tzipi Livni – and, yes Blair and Bush – and the Hussains, Mugabes Milosevics of this world. It won’t always be a clean-cut line either, and I don’t really think that there is the acceptance of difference. Given the Livni case, the fear that, ‘universal jurisdiction,’ is seen by some as code for, ‘Israel,’ is not totally without foundation

    Accusing western leaders of war crimes as a political statement is to belittle what war crimes really are. Israel, the UK and the US all have legal due process where the actual perpetrators on the ground can be held to account, even if they are in an army. This is a very different set of circumstances from the regimes where the abusers are protected from domestic redress.

    And all this is before we get to arguments about the principles of national sovereignty that Libya is showing up in a grisly way.

  • Eileen Doret, London 30th Mar '11 - 1:55pm

    The over-riding fact remains that there can be no peace in Palestine until those ministers in the Kadima government of Ehud Olmert – who is now facing serious charges of long-term corruption and bribery – who authorised the killing of hundreds of civilians in Gaza in December 2008, are apprehended and brought before the International Criminal Court in the Hague.

    Corruption and democracy are mutually exclusive. The killing of innocent non-combatants, 300 of whom were children under the age of sixteen, as reported by the UNHRC, must be investigated. In the meantime, anyone alleged in that report to have colluded in war crimes or crimes against humanity must not be allowed free entry into the UK, as now demanded by Israel.

  • For very many years the excuse for Israeli arrogance and rudeness was said to be an inferiority complex – now they exhibit paranoia, stemming no doubt from a growing awareness that they cannot bury the Goldstone Report nor can they continue to claim to act merely as other armies act.

    They know, as we know, that no other army anywhere in the world deliberately targets children on the pretext that they were a threat to a heavily armed attacking force.

    Over 300 hundred children died in Gaza in January, unarmed and defenceless against tanks and missiles fired upon a civilian population from helicopters and remote controlled drones.

    It was a massacre, and that is why Israel is frightened that it has been exposed. They know, as we know, that those responsible will at some date face the Criminal Court in the Hague.

    The Knesset ministers in power at the time of the Israeli strike against Gaza, incuded Ehud Olmert, Ehud Barak and Tziporah Livni.

    Democracy cannot exist with an acceptance of war crimes. Those who authorized the killings must face justice or the foundations of the entire state will be terminally weakened.

    Our parliament should not accede to foreign pressure to change the law.

  • Gareth Epps 31st Mar '11 - 1:16pm

    This is a good piece by Julian. However, it doesn’t answer the key question, which is: why is the Government changing the law because of one (it doesn’t actually matter where they’re from) foreign politician and alleged war criminal?

    Ann Clwyd couldn’t change her own party’s mind when in Government, but she is surely right in saying that ‘Changing the law at the request of a foreign Government does not, I would argue, enhance our ability to act as an international peace broker. It does exactly the opposite by undermining our credibility to speak as a country that takes human rights seriously.’

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