By Sir Geoffrey Bindman
Universal jurisdiction is a major development in the world legal order. It seeks to give practical effect to the global commitment to human rights by facing those whose power protects them at home with the prospect of being tried for their crimes if ever they venture abroad. In common with other signatories of the international human rights conventions and treaties the United Kingdom has given its courts power to try those suspected of war crimes, torture and other serious violations of international law wherever in the world the crime took place, and regardless of the nationality of the suspect.
The Chilean dictator Pinochet, responsible for the torture and murder of thousands of his fellow citizens, was arrested when he came to Britain in 1998 at the request of the Spanish government. He was ordered to be extradited to Spain to stand trial there but could equally have been put on trial in Britain. In the end he escaped justice because, controversially, the Home Secretary accepted his claim that he was medically unfit to stand trial.
Faryadi Zardad, an Afghan warlord, was not so fortunate. In 2005, having fled to London on a fake passport, he was tried and convicted of hostage-taking and torturing his fellow citizens in Afghanistan. He is serving two concurrent terms of 20 years imprisonment.
Other perpetrators, unwilling to risk arrest and conviction, have doubtless wisely stayed at home. Restricting their foreign travel may fall a long way short of the punishment they deserve, but it may be a deterrent to future transgressions.
When a London magistrate was recently persuaded to issue a warrant for the arrest of Tsipi Livni
, former foreign minister of Israel
, on suspicion of having committed war crimes, the Israeli government protested vigorously. In fact, the warrant was no threat at all to Ms. Livni. It was issued in the mistaken belief that she was in Britain. When the error was discovered the warrant was immediately withdrawn.
Unfortunately, the Israeli protest prompted an over-hasty and ill-considered response from the British government. While confirming his strong commitment to international justice and the principle of universal jurisdiction, Gordon Brown publicly questioned the process in which, as he put it “an arrest warrant for the gravest crimes can be issued on the slightest of evidence.” He claimed that there was a significant danger of the power of arrest being “exploited by politically-motivated organisations or individuals who set out only to grab headlines knowing their case has no realistic chance of a successful prosecution.” He pointed out that no prosecution could in any event be brought without the consent of the Attorney-General, suggesting that there was no need for a power of arrest before the Attorney-General had decided whether a prosecution should go ahead. It was widely believed that the government would introduce emergency legislation to transfer the power to issue arrest warrants to the Attorney-General.
The Prime Minister had not been adequately briefed. The power of arresting suspected criminals, whether by the police or at the instigation of private citizens is particularly important for international crimes where the suspect may otherwise rapidly leave the jurisdiction. Once the suspect is brought before the court bail can be granted immediately. The only purpose is to secure the attendance of the suspect at court should the Attorney-General decide to prosecute. Nor is the decision to issue an arrest warrant taken lightly. Only the most senior and experienced magistrates – professional judges albeit on the lowest rung of the judicial ladder – deal with major international crimes.
On 4 March a statement was issued by Jack Straw, Secretary of State for Justice and Lord Chancellor in rather more moderate terms than those of the Prime Minister. “We remain,” he said, “absolutely committed to upholding the principles of universal jurisdiction, so that there can be no impunity for those suspected of such grave offences.”
While suggesting that the power to obtain an arrest warrant should be limited to the Crown Prosecution Service (which operates under the authority of the Attorney-General), he recognised that the issue was controversial, involving the long-standing right of private prosecution. He withdrew the immediate threat of legislation and instead initiated a process of consultation, ensuring that nothing will be done before the general election.
To withdraw the citizen’s right to seek an arrest warrant for suspected war criminals and torturers would be a retrograde step and no change in the law is justified. If Jack Straw has kicked the issue into the long grass, that is where it ought to remain.Sir Geoffrey Bindman has practised as a solicitor in London for 50 years and is a visiting professor of law at both University College London and London South Bank University. In 2007 he was knighted for services to human rights. He is currently chairman of the British Institute of Human Rights. He is a patron of JNews – Alternative Jewish Perspectives on Israel and Palestine.
This article was originally published in JNews