Laws And Lawyers

Should individuals have the right to issue private arrest warrants for war crimes?

Last month an arrest warrant was issued by Westminster magistrates against Tzipi Livni, the Israeli opposition politician and former Foreign Minister, in connection with Israeli military action in Gaza in 2008.

Livni immediately cancelled her trip and David Miliband, the Foreign Secretary, pledged action to change the law. Baroness Scotland of Asthal, the Attorney-General, said the same last week.

Israeli leaders, Miliband said, must “be able to visit and have a proper dialogue with the British Government”. And Israel’s Ambassador to Britain commented after talks with Miliband that the Government should take a firm stand to stop British courts becoming a playground for anti-Israel extremists.

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David Pannick: the case of Tzipi Livni
Under the law, a magistrate may issue such a warrant if persuaded that there is prima facie evidence of an offence. Lady Scotland is thought to be examining whether there should be a requirement for the Attorney-General’s consent to the issue of private arrest warrants for war crimes. The logic is that the Attorney already has a veto on subsequent war crimes prosecutions.

There is growing support (including by this newspaper) for such a move. Lord Pannick, QC, who writes on the topic in the Law pages today, argues that the state of the law is incongrous.

In a legal opinion he gave to the Jewish Leadership Council, which was sent to the Government, he says it is anomalous that “in the context of international relations” that prosecution over war crimes needs the consent of the Attorney but not an arrest.

The Attorney would consent, he points out, only if satisfied on two fronts: that there is a realistic prospect of conviction, by reference to all the evidence (which is a much stricter test than a prima facie case applied by magistrates) and prosecution was in the public interest.

He argues: “Such an arrest may seriously damage the public interest, even if no prosecution follows, because politicians and generals may be deterred from visiting this country and because [if they do come here] the arrest may undermine the relationship between this country and an ally.

“These detriments are not confined to the risk of arrest of an Israeli politician or general. An American citizen could face the same problems.”

He proposes requiring the consent of the Attorney in such cases because the Government’s chief law officer is best placed to weigh the implications for international relations with the UK and other states — matters that are “very properly not the concern of the magistrate”.

But not everyone agrees. Justice, the all-party law reform and human rights organisation, believes instead that the Director of Public Prosecutions (DPP) is better placed than the Attorney for such decisions.

It says: “The role of the Attorney-General has been in issue since the controversial intervention of Lord Goldsmith in a case relating to Saudi Arabia and a subsequent consultation as part of the Government’s Governance of Britain programme.”

If the Government wishes to amend the law, argues Sally Ireland, the Justice director of criminal justice policy, then there should be full public consultation in the UK — “before making announcements on its thinking abroad”.

“UK law on war crimes,” she adds, “should be enforced fairly and should not depend on the nationality of the suspect.”

Lawyers for Palestinian Human Rights also have concerns. Daniel Machover, chairman of the group, says that the Government should carefully weigh everything in the balance when considering whether it is appropriate to stop alleged victims [of war crimes] applying for judicial arrest warrants.

Changing the provisions, he argues, would “undermine our strong democratic values and the rights of victims of alleged serious crimes to access to justice”.

Criminal charges, he adds, would be brought only for grave breaches and where the Attorney, in consultation with the DPP, thought there was sufficient evidence to justify them.

The key point about war crimes, he argues, is that the perpetrators often have to be brought to account outside their own country. Neither international relations with a given state, nor the nationality of the suspects, should determine the outcome of cases.

“The only issue is whether or not there is a legal case to be tried when they would otherwise not be.”

He warns: “Restricting the present system, including the long-standing judicial arrest warrant procedure, for narrow political interests will risk endangering human rights everywhere. Meanwhile, there is no evidence of judges falling short of high standards in making these decisions.”

As for where such crimes should be tried, the principle of universal jurisdiction and the Geneva Conventions Act 1957 allows for the arrest and prosecution of all suspected war criminals, regardless of nationality.

As Sir Ken Macdonald, the former DPP, put it: “Where extradition or deportation cannot safely take place, and international justice is unavailable, the UK has to be ready to prosecute these awful crimes here.”

So the question remains — who should be able to trigger an arrest? The Attorney may be best placed to know about international relations but by the same token, may be least able to be dispassionate and impartial. The DPP might therefore be better placed to do the job.

Either way, a consent system for all arrest warrants sought for war crimes involving suspects of whatever nationality, would ensure that groups with a political or campaigning agenda cannot use the justice system for their own ends.