20 March, 2010

"Universal Jurisdiction" Arrest Warrants and the U.K.

In December 2009, clearly much to the embarrassment of the present British government, the City of Westminster Magistrates' Court issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni - see The Guardian 14th December 2009.  The court issued the warrant at the request of lawyers acting for some of the Palestinian victims of the fighting but the warrant was withdrawn when Livni cancelled her visit to the U.K.  The warrant was an indication of the increasing use of "universal jurisidiction" in order to pursue those alleged to have committed certain crimes (e.g. war crimes etc).  Israel claims that Operation Cast Lead was necessary for self-defence of the population against Hamas rocket attacks from Gaza.

The appalling conflict in former Yugoslavia became the course of a further arrest warrant issued against Dr Ejup Ganic a former President of Bosnia Herzegovina - see The Independent 20th March.  Ganic was arrested at London (Heathrow) Airport and held in custody for 10 days before being granted bail.

The U.K. Ministry of Justice has put forward proposals to restrict the ability of private individuals to apply for such warrants - see Ministry of Justice.   Government argues that the "best" solution in relation to non-British nationals alleged to have committed a universal jurisdiction offence abroad is that only the Crown Prosecution Service (CPS) would be able to apply for a warrant.  The right of a private individual to apply for a warrant in respect of a universal jurisdiction offence would be restricted to cases committed in the U.K. or if the suspect was a British national or a member of the U.K. Armed Forces.

The CPS operates under the "superintendence" of the Attorney-General but the head of the CPS is the Director of Public Prosecutions (DPP).  Nevertheless, the proposal that only the CPS could apply for a warrant in a case such as Tzipi Livni seems somewhat more acceptable than an earlier proposal that a warrant could only be issued with the Attorney-General's specific consent.

Australia and New Zealand permit individuals to apply for warrants though any subsequent prosecution requires the consent of the relevant Attorney-General.  In Canada, the Attorney-General would be given notice of any application for a warrant and would be able to make representations to the court and also any prosecution may only take place with the Attorney-General's consent.

Joshua Rozenberg, writing in the Law Society Gazette, has summarised the current situation and he argues that changing the law in the way suggested by the Ministry of Justice would be sensible.  The proposed change runs the risk that the U.K. will be seen as becoming less committed to universal jurisdiction.  Also, the UK government appears to be acting so as to avoid embarrassing rebukes from States with which the UK has friendly relations - see Telegraph 15th December 2009.


J said...

To those not fully aquainted with the procedure outlined by Obiter the individuals who consider such applications have never to my knowledge been "magistrates"; it is always a District Judge in a Magistrates` Court sitting alone in such matters. The process has allowed political opportunists to use this law to undermine British foreign policy. This alone should be enough to allow such warrants to be issued only by a government law officer "in the public interest". Jack Straw relies greatly on Muslims as a group to vote for him in May and many Muslims in general have been conditioned by propaganda to regard this country`s relationship with Israel as a factor in their support for this government....support Israel and forfeit our vote.......Jack Straw as can be noted from his appearance at the Iraq inquiry bends in the direction of the strongest wind. And he knows which way the wind is about to blow.

ObiterJ said...

Yes, the Westminster Magistrates' Court is actually a District Judge (Magistrates' Courts) who sits alone on these applications.

I am sure that some "political opportunists" will seek to use the warrant procedure. I am not entirely sure they would do so "to undermine British foreign policy" as opposed to using it merely to get at their political enemies.

There is a constitutional problem in allowing any government Minister to be involved in the process since they could make decisions based entirely on politics by, for example, permitting a warrant against one person who is not supported by Britain and refusing a warrant against someone who is supported.

It seems preferable to allow only the D.P.P. to make these applications. Nevertheless, there should be a proper role for the judiciary in ensuring that there is a good case to answer before a warrant issues. That requires the presentation of evidence and not merely an assertion that someone has done something.