Universal jurisdiction should not be fudged

By Daniel Greenberg, August 4, 2010
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The proposed reform of the universal jurisdiction law relating to war crimes, advanced by Justice Minister Ken Clarke, is far from being the solution to the current, unsatisfactory state of affairs. Israeli politicians and soldiers have been wary of visiting the UK for the past couple of years as the result of a couple of near misses in the way of attempted arrests — notably when a warrant was obtained against Israel’s Opposition leader Tzipi Livni by Palestinian supporters last December.

The proposal to introduce the requirement for the consent of the Director of Public Prosecutions before magistrates can issue an arrest warrant cannot be guaranteed to achieve its objective. The DPP would have to exercise any discretion strictly on the basis of evidence, and the most likely test would not be certainty of conviction but a requirement of a serious case to answer.

The problem with this is that, in many cases, there may well be one. Is it impossible, for example, to say that there is sufficient evidence to raise a serious case about a politician’s or soldier’s involvement in orders to use white phosphorous, contrary to international law?

Even where it was far more likely than not that a jury would acquit, a DPP still might feel that there was sufficient evidence to leave to a jury.

Any change in the law must avoid undermining the principle that certain crimes are committed not against a particular state but against humanity, with the result that all nations assert jurisdiction to try and punish those crimes. Anything that appeared to make a special change in favour of Israel in particular would be ethically and politically disastrous.

So it is correct to change only procedure and not substance; but the change needs to produce certainty. One way of achieving that would be to introduce a system of certification. Anyone proposing to travel to the UK who thought that they might be the object of politically motivated arrest attempts could, when they applied for their visa, also apply for a certificate valid for the length of their proposed stay. A list of organisations interested in pursuing war criminals would register with the Minister of Justice, and be notified when an application for such certification was made. They would have two weeks to present evidence against the applicant.

At the end of the two weeks, if no evidence had been presented, the applicant would be given a certificate that would guarantee immunity, during his or her stay, from arrest for war crimes alleged to have been committed before they travelled.

If evidence was presented, the DPP would evaluate it and form a judgment as to whether there was a sufficient case to go before a jury: if there was, the applicant would receive no certificate and would travel at his or her own risk.

The result would be that nobody could be taken by surprise, but the principle of international jurisdiction would be preserved intact; and there would be no pressure on the DPP or anyone else to make a special case for Israel or any other country.

Daniel Greenberg is a barrister and legislation consultant

    Last updated: 2:24pm, August 13 2010

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