The provisions contained within the police reform and social responsibility bill are as a result of the consultation initiated by the Labour government back in March, following the bizarre spectacle of the then Israeli foreign minister, Tzipi Livni, cancelling a visit to the UK because campaigners against the Israeli government’s actions in Gaza threatened her with an arrest warrant for war crimes. They were able to do this because of a loophole in our current judicial process, peculiar to Britain, which allows the potential for private prosecutions being pursued on the basis of a prima facie case where no real prospect for conviction exists.
Campaigners against the government’s proposed reforms comprise well meaning human rights campaigns who are concerned to ensure the preservation of universal jurisdiction as a feature of British law and those who want to abuse the law to achieve publicity for their campaign against the state of Israel. The former will cite the arrest of dictators like Augusto Pinochet as a cause célèbre. The reality is that a variety of figures, including former US President George W Bush could face arrest on a prima facie case, even though there is no chance of a prosecution.
Not only is the status quo an expensive waste of time, it is a national embarrassment to a country that has a role to play on the international stage as a member of the UN Security Council, NATO, European Union and the Commonwealth. If Britain wishes to maintain a serious role – and the left should always press home the case for our internationalist role in conflict resolution and human rights – we need to be able to engage with the players that can make it happen.
Private prosecutions should have little appeal to those serious about seeing the conviction of those guilty of war crimes and human rights abuses. They lack the weight of investigative by the police and exclude the involvement of the director of public prosecutions, whose approval is ultimately required. Only two prosecutions under universal jurisdiction have ever taken place and neither relied on private prosecutions.
These reforms will bring the UK into line with many other countries and will not lead to a change in the burden of proof needed for prosecutions. The government is right to seek sensible modifications to the law and the Labour opposition has been right to give them support. The shadow team have sought certain safeguards; that the Metropolitan police and the Crown Prosecution Service should each have a specialist division to deal with such cases and that there should be a fast-track process for citizens seeking an arrest warrant.
Those of us who wish to see an end to the Israeli-Palestinian conflict and the establishment of a two-state solution will surely see the folly of threatening to arrest visiting Israeli politicians. In any case, the current laws are unworkable and unsustainable. The principle of universal jurisdiction is one that must work in practice, not simply as a media stunt.
Spot on, Wes.
worth noting also that these proposals are actually a bit weaker than a draft clause that the Labour Government published in February.
Stand for parlaiment Wes, we need you,
Really good article. Has addressed my concerns about the Government’s proposals.
Hi Wes, it is unfortunate that you seem to continue the LFI theme you so consistently followed when NUS president. It is also a shame that you do not declare your solid commitment to all things Israeli when you write this plainly bias article! Thankfully I am no longer sure your blinded commitment to the cause will stand you in good stead in Ed’s camp!
Wes, thank you for your response to my article on Labour List. I regret thought that your sincere article is beset with serious factual errors that undermine your case. THE TZIPI LIVNI AFFAIR Tzipi Livni was not Foreign Minister. She was Leader of the Opposition at the time. The charges related to her time as Foreign Minister. If she was Foreign Minister, she would have been protected under the principle of immunity ratione personae. A lot of people enjoy immunity. IMMUNITY FROM ARREST A lot of people are immune from arrest: • Heads of State, Foreign Ministers and Defence Ministers; • Diplomats and their staff; • Members of the government here to fulfil their official functions, which might include travel or diplomatic missions on behalf of their country; • Members of a Special Mission, which is anyone that is agreed by both countries as being here for a specified reason, a nice catch-all for people not in the above categories. SO WHY WAS A WARRANT GRANTED Ms Livni was in the UK for a fundraiser. If she had been here on diplomatic duties, she could not be arrested in the UK. Immunity prevented the issuing of an arrest warrant for the majority of the ten people whose alleged crimes have led to private prosecutions. Examples include Bo Xilai, the Chinese Minister for Trade, implicated in torture and Robert Mugabe. Ms Livni herself was accused of some pretty serious stuff. Former Chief Prosecutor of the ICTY and ICTR, Richard Goldstone’s, report to the UN contextualised the widespread destruction of Palestinian civilian infrastructure – serious breaches of international criminal law – with Ms Livni’s quote that Israel “goes wild” when attacked. He concluded, and keep in mind that this is a man whose job was to prosecute the most heinous criminals, that there was a prima facie case for prosecution. PRIMA FACIE DOESN’T MEAN ANY OLD CASE To get an arrest warrant doesn’t require some guy to turn up and go, “Your honour I want a warrant.” Ten applications have been made – ever. Two have been granted. Applications are seen by senior magistrates, trained in international criminal law, at specialised centres (now limited to Westminster Magistrates court). The very same standards are demanded from a private applicant and the Crown Prosecution Service (headed by the Director of Public Prosecutions, who directly reports to the Attorney General, a member of the Cabinet). They, in no way, lack the “weight” of prosecution by the police. That is simply untrue. They have to pass the same strict evidential test. It is true that the CPS has to take into account other considerations in the Full Code Test – the viability of a guilty verdict, etc. – but that is because it’s a public body and has to ensure that public money is not wasted. QUE? NO. 1 There has been only one prosecution for a universal jurisdiction offence. An Afghan convicted of torture. The CPS prosecuted that individual. QUE? NO. 2 You say “that there should be a fast-track process for citizens seeking an arrest warrant”. But the new rules mean a private prosecution necessarily takes far longer, as it requires the DPP to review it, which makes arrest more difficult due to the lag in time. QUE? NO. 3 You say the current laws are “unworkable and unsustainable”. It stopped a politician accused of horrendous crimes (by a UN investigation to which Israel agreed to take part that concluded there was a serious case to answer) from coming over for a fundraiser. Anyone here for diplomacy is safe. In short, once you erode the errors in your case, there is no case. We can still do diplomacy – immunity ratione personae takes care of that. You’re right in saying that one might seek an indictment for George W Bush and given he’s gleefully admitted to torturing Guantanamo residents (and waterboarding is torture, Will), that might actually not be the worst thing in the world (even though immunity ratione materiae might save his butt – but we’ll save that lesson for another time). Yours, Imran