UPDATE (16 February 2011): You can read our submission to the Police Reform and Social Responsibilty Public Bill Committee here.
This page has an abridged version of our full briefing on Universal Jurisdiction (UJ) and arrest warrants - our Universal Jurisdiction and arrest warrants Briefing is also available in PDF format.
UJ is the legal power which allows suspected perpetrators of crimes such as war crimes, torture and genocide to be prosecuted in the national courts of countries other than those where the alleged crimes were committed. As a signatory to the four 1949 Geneva Conventions and the 1984 UN Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (UNCAT), Britain has not only the capacity, but also the duty, to arrest and prosecute those suspected of such crimes.
The purpose of UJ is to ensure that there is no hiding place for suspected war criminals.
The current position is that a private individual may apply to a magistrate for an arrest warrant if the war crimes suspect is visiting the country or a visit is anticipated. The Attorney General’s consent is needed for the prosecution to go ahead. But under Section 25 of the Prosecution of Offences Act 1985, absence of consent does not prevent the issue of a warrant, if the magistrate considers that:
- there are reasonable grounds to suspect that an offence under such legislation has been committed;
- admissible evidence has been presented which (if uncontradicted) establishes the elements of the offence alleged;
- s/he has jurisdiction to issue the warrant and has ruled out the immunity of the suspect.
There has not been one successful attempt to procure the issue of a warrant in a manner that was an abuse of process. Significantly, none was cited by the last Government when it proposed to change the law. Indeed, Gordon Brown’s generalised assertions are an insult to our judicial system and the victims of some of the most heinous crimes. Proposals by the last Government to change the system attracted criticism from NGOs such as Amnesty International, Human Rights Watch, Liberty, Redress, Global Witness, FIDH (the International Federation for Human Rights), and Justice (the British section of the International Commission of Jurists), as well as practising lawyers.
The issue of the arrest warrant for a war crime is decided only by specialist legally qualified magistrates such as the most senior district judge at Westminster Magistrates’ Court. They are well qualified to decide whether the high threshold of evidence, liability and jurisdiction has been met and that no immunity applies. If the issue of the warrant has to wait until a decision whether to prosecute had been taken, whether by the Crown Prosecution Service (the “CPS”) – as was advocated in a paper produced by the Ministry of Justice for the last Government - or by the Attorney General, the suspected war criminal will long since have fled the jurisdiction. Suspects should not escape before the police and/or CPS have had the opportunity to make a considered decision whether to investigate the allegations. The removal of the right of public prosecution in such cases would have the effect of turning our country into a safe transit point for war criminals, torturers and those guilty of genocide from all over the world.
Any attempt to involve the Attorney General in the decision to issue the warrant would be regressive. It would be a retrograde step with regard to the independence of prosecutors. If any revision to the law is contemplated, then it should be to reduce the role of the Attorney General in favour of that of the Director of Public Prosecutions who should become the official who decides on the public interest requirement of whether the prosecution should go ahead, once a warrant has been issued. If desired, the DPP could also be given the right to advance notice of the application and the right to attend the hearing of the application.
The right to bring a private prosecution is an ancient, common law right with which the Executive tampers at its peril.
Amnesty International, Human Rights Watch, International Federation for Human Rights, Global Witness, Justice and REDRESS issued a joint briefing on Universal Jurisdiction in the UK which stated that they were:
…gravely concerned that any changes to existing law and procedure will undermine the capacity of victims of serious international crimes to hold accountable alleged perpetrators who come within the UK’s jurisdiction by making all arrest decisions in such cases subject to political considerations rather than being based on the legal merits. Suspects may therefore find a safe haven in the UK, and the already considerable barriers to bringing such suspects to justice will be heightened.
Instead of making it more difficult to arrest with a view to prosecuting such suspects, the UK should be seeking to enhance its capacity to do so, and mooted legislative changes are a step entirely in the wrong direction.
We were lucky and honoured to have the Legal Director of REDRESS, Carla Ferstman, speak at one of the Liberal Democrat Friends of Palestine events and she impressed upon us the importance of Universal Jurisdiction. You can hear what she had to say in our video of the event, Accountability for War Crimes.
(Creative Commons image by John Linwood)
