Opinion: could Universal Jurisdiction be the next test for Coalition unity?

Foreign Secretary William Hague apparently pledged on Thursday to alter Britain’s law on universal jurisdiction – a move which could again bring up the question of Liberal Democrat MPs voting against Government motions.

According to an Israeli Embassy official, Hague told Benjamin Netanyahu that the coalition will be moving as fast as it can to amend the universal jurisdiction law, with the aim being that a draft amendment will be put before parliament in the coming months.

The move comes on the back of Israel’s postponement of all strategic dialogue with Britain as a protest against the current law.

Israeli objection to the law centres on the fact that, currently, a private citizen can petition a magistrate to issue an arrest warrant or a summons, thereby starting criminal proceedings against an individual.

The perceived issue is that the evidence needed to obtain a warrant or summons from a magistrate is far less arduous than that which would be required by the CPS in determining whether a prosecution can go ahead.

This raises the fear that warrants or summons could be sought to make a political statement or to cause embarrassment to visiting foreign politicians. Last year, an arrest warrant was issued for former Israeli foreign minister Tzipi Livni on the request of a number of Palestinians.

This caused Livni to cancel a trip to the UK and was seen by many to create a precedent whereby Israelis would be unwilling to attend any talks in Britain, damaging bi-lateral relations and hindering strategic discussions between the two nations.

Back in July, the Coalition announced plans to alter the universal jurisdiction law so that the consent of the Director of Prosecutions would be required before a warrant would be issued.

With Hague’s apparent promise to move these plans forward, Lib Dem MPs could soon find themselves voting on an amendment to bring in these changes.

But, in the shadow of accusations of broken promises over tuition fees, Lib Dem MPs would do well to remember EDM 501 from the previous sitting of Parliament. The text of this EDM, tabled by Jeremy Corbyn, reads: “That this House believes that universal jurisdiction for human rights abuses is essential as part of the cause of bringing to justice those who commit crimes against humanity and will oppose any legislation to restrict this power of UK courts.”

While the proposed changes to the universal jurisdiction legislation may actually be a good idea – creating a new level of legitimacy to any warrants that are issued – they undoubtedly restrict the power of the UK courts, especially at lower levels. Answers will be asked about what criteria will need to be filled before the Director of Prosecutions will allow a warrant to be issued. Fears will also be raised about the possible politicisation of decisions.

The EDM attracted 145 signatures, 53 of whom were Liberal Democrats. These included Vince Cable, Chris Huhne, Lynne Featherstone and Ed Davey – now all members of the Government – as well as deputy leader Simon Hughes.

Lib Dem policy on this matter has previously stated that the party would not support “any watering down of the current legislation” and that any changes would be as a result of a full judicial review. It remains to be seen if Hague’s promises to the Israeli’s have ridden roughshod over this.

The universal jurisdiction subject is an issue that almost certainly won’t attract the same level of media attention as tuition fees – but it may prove just as divisive.

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19 Comments

  • The coalition will break-up if it changes this law.

  • Israel has been for too long the tail that has wagged the dog.

    A country of 6 million people that depends for its existence on western military support and financial aid, yet feels it has the right to dictate the domestic and legal policies of other countries.

    And the worrying thing is that they seem to be successful in doing so.

    But it is fast becoming clear that the unconditional support for Israel from some western countries is not only counter-productive to our own interests as nations, something that has been obvious for some time, but is counter-productive to Israel’s own long-term security and even its hope for survival.

    No, we should not change our legal policies because a country that has survived, as was created, in a large part due to our and America’s spport. No, America shouldn’t release a convicted spy who sold military secrets to Pakistan and Israel just because the Israelis are demanding it. We should be using our own very real power and influence through Europe and the USA to force Israel to take a constructive attitude to Middle East peace and the I/P conflict…. something which is in all our interests. If the Israeli government doesn’t like our laws then they should get stuffed frankly, and military aid and guarantees and financial aid should be withdrawm.

  • Colin Green 8th Nov '10 - 1:39pm

    RichardSM,

    “The coalition will break-up if it changes this law.”

    Really? I have to admit, I hadn’t heard of it but now that I’ve looked it up, I’m glad we have it. I wouldn’t oppose minor changes to the law that mean a stronger weight of evidence is needed before issuing the warrant, so long as the changes are not too tough. The use of it should of course be limited to serious cases with an intent to prosecute, and not be used as a publicity tool. Provided the changes are moderate and don’t dilute the proper use of this power, I don’t see why the coalition would break up.

  • Colin Green

    So, you support the view that judgement should be taken away from the independence and plurality of courts and given to individual government appointees.

  • Israel have had no problems using British passports and transgressing other country’s laws, such as Italy’s (re vanunu)/ That is probably one reason why their government wants universal jurisdiction tampered with… they are often on the wrong side of the law. Really we should be the ones demanding a change in the behaviour of the Israeli governemnt, not the other way around.

  • Colin Green 8th Nov '10 - 2:57pm

    RichardSM,

    Nothing that I wrote even suggested that. I wrote “a stronger weight of evidence” by which I referred to the original article’s point that much less weight of evidence is currently needed than would be required to start a trial.

  • Colin Green

    Then you don’t understand what is being proposed.

    At the moment it is up to a court of law to decide, based on the submission evidence presented, whether there is a case to answer. The proposal is to change this to the Director of Public Prosecutions.

  • Oh goody, yet another red line that’s (probably) going to be crossed!

  • There are plenty of ways of amending laws whilst protecting their validity – changing the process for obtaining an arrest warrant would achiece this. Surely it can’t be right that any magistrate can issue arrest warrants for a visiting international democratically elected politician of another democracy… based on political decisions. Surely there should and could easily be a higher test – thus preserving universal jurisdiction as a principle and as a power, and removing the abuse of the current level of legislation.

  • Andrew Wimble 9th Nov '10 - 9:40am

    Chaning the rules to ensure that arrest warrents are not issued unless there is a genuine case to answer would make sense, giving a veto to a politician who is likely to me influenced more by diplomatic needs than the law would not.

  • Terry Gilbert 9th Nov '10 - 9:50am

    The problem with the DPPhaving the final say is, as Richard has said, that he is an individual, and individuals, however high their standards of probity, can be leaned on, and will then swear blind it was their own decision. (Witness the AG over the Iraq war.) Some amendment may be acceptable to Liberal Democrats to prevent radical exiles from seeking unjust warrants from low ranking magistracy against visiting officials. But what about just warrants against visiting officials who HAVE committed atrocities? An acceptable compromise might be to require the authority of a judge, rather than the DPP.

  • This is the first time I’ve heard it suggeested that an EDM proposed by Jeremy Corbyn MP, even if signed by a large number of Lib Dem MPs, is a conculsive statement of Party policy. I’m not aware of any Conference resolution or manifesto commitment on this topic.

    It’s already the case that any prosecution for war crimes under the Geneva Conventions Act 1957 or the International Criminal Court Act 2001 requires the consent of the Attorney General. In deciding whether to prosecute, the Code for Crown Prosecutors http://www.cps.gov.uk/publications/code_for_crown_prosecutors/ requires the application of a double test: is there enough evidence to provide a “realistic prospect of conviction” against the defendant and is it in the public interest to bring the case to court.

    Private prosecutions are not a fundamental part of universal jurisdiction; indeed they are an unusual feature of English legal practice. It’s a starnge anomaly that in a situation where no private prosecution is possible, any private individual can obtain an arrest warrant – and the test applied is a different and lower one than actually to bring a prosecution.

    (There’s a detailed House of Commons Library briefing note on this topic at http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-05281.pdf)

  • .
    @ Ed wrote: “Surely it can’t be right that any magistrate can issue arrest warrants for a visiting international democratically elected politician of another democracy… based on political decisions.”

    Your non-sequitur may be intended or unintended, but a non-sequitur it is nevertheless. Magistrates have no scope to issue arrest warrants based on political decisions, only legal decisions based on the evidence submitted.

    I find it strange that you have inserted “democratically elected” and “democracy” into your sentence. Do you think that democratically elected politicians can’t commit crimes? That’s the view Richard M Nixon held about crimes committed by politicians, “Well, when the President does it that means that it is not illegal.”

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