Vera Baird DBE KC

Writer, Lecturer, Parliamentary Consultant and Co-Director of Astraea: Gender Justice

Universal Jurisdiction –  The Individual Freedom to Commence a Private Prosecution should be retained

David Cameron’s condemnation of the Israeli naval attack on the flotilla and his assertion that Gaza is “a prison camp” ought to make him think again about William Hague’s  decision to abolish the right of a private citizen, in the UK, to start a prosecution for war crime.

This right came to the fore last December with an imminent visit to London by Israeli Opposition leader Tzipi Livni. She was a key Government Minister at the time of “Operation Cast Lead” the bombardment of Gaza in 2008 which the Goldstone Inquiry had just condemned as unlawful. British solicitors working for people hurt in the bombardment applied for an arrest warrant to prosecute Ms Livny for war crimes. They must have had  convincing information because the most senior magistrate in London granted a warrant. But there was a diplomatic protest and an apparent change of plan and since Ms Livny did not arrive here, the warrant was withdrawn.

I answered a Commons debate about this at the time, in my then role as Solicitor General. The Government was divided.  The FCO wanted to scrap the power immediately; Gordon Brown apologised to Livny and the Attorney, Patricia Scotland told Israelis, in a lecture that they ought not to be arrested here. However, other ministers disagreed, including me. Withdrawing this right when Cast Lead had just been declared unlawful would suggest that we would help Israel whatever it did. Furthermore, this is a British right, nothing to do with Israel and it should not be dismantled after decades of, sometimes, effective use, to keep us in favour with a country we seem unable to influence anyway.

Much of our criminal law is territorial, applying to acts done in England and Wales or done by British people but in relation to crimes such as grave breaches of the Geneva Conventions Act 1957, torture and taking hostages we have agreed to prosecute them here wherever or by whoever they are committed. This is universal jurisdiction intended by all the countries who accede to it ensure that there is no international hiding place for perpetrators of grave crime. We have a duty to seek out the culprits and either to extradite them  or to prosecute them here. One example is that an Afghan warlord, Zardad, was successfully prosecuted in the UK in 2005 for torture offences abroad.

In the UK it is not only the police who can initiate proceedings. Any individual can apply to a magistrate for a summons or warrant to bring someone to court. The test for the magistrate is whether there is some “prima facie” evidence of an offence by the person named. Many serious offences can’t go beyond this stage without the Attorney- General’s consent. But there is a particular quirk in the law that while a summons cannot be issued, in an Attorney General’s consent case until that consent is given, an arrest warrant can be granted without it. A summons to attend court weeks ahead is of no use for a suspect flying into the UK  on a short term visit and so there are two reasons why lawyers for war crime claimants apply for arrest warrants.
This is undoubtedly a dramatic means of bringing a campaign to public attention but it is also the only practical course. The Magistrate has to act as the gatekeeper refusing access to the criminal justice system for political gestures whilst issuing process, in accordance with the law, if there is a real and ready prima facie case.

The relatively low test he has to apply gives way to successively higher ones, first to get the Attorney General’s consent and later for the Crown Prosecution Service, who have power to take over private prosecutions, in determining whether the case complies with its standard  that there is a 51% chance of conviction. CPS must also be satisfied that the prosecution is in the public interest. So an individual who gets an arrest warrant still has a mountain to climb.

Ideally, anyone with evidence of war crimes should go to the police but international inquiries are expensive and may not be a priority. And there have been some clear examples of reluctance to pursue international allegation, as when some years ago Israeli General Doron Almog arrived in London and flew straight out again, having apparently been tipped off that police would have to serve him with a privately obtained arrest warrant, if he got off his plane.  Since the UK  plays a role in negotiating away international conflicts, we have to talk to people on both sides, so it can be argued, as it was in the Livny case, that prosecuting any involved political figure is not in the public interest. Indeed it has recently been suggested that CPS definition of what is in the public interest might include not prosecuting people linked to government with which we have friendly diplomatic relations. So much for universal jurisdiction.
Meanwhile, in the six months since Tzipi Livny faced a UK arrest, Israel has attacked the  flotilla and continued the blockade of Gaza,  both, like “ Operation Cast Lead” almost certainly contrary to international law. Apart from the unlawful violence against the flotillas, it is the clear view of Navi Pillay, the UN Commissioner for Human Rights that Israel is using starvation as a weapon of war and inflicting collective punishment on the people of Gaza, both as unlawful as they are reprehensible and cruel.

So, dramatic campaign tactic or not this right is valuable and should continue. Albeit the authorities can defeat it if they wish, it can instead motivate them through contact with the presence of victims and can galvanise an inquiry. Compare the impact of going into a local police station and asking the desk sergeant to investigate a foreign statesman with submitting evidence which convinces a highly qualified District Judge/Magistrate that there is a evidence at first sight on which he is obliged to issue proceedings. This is not an abuse of the criminal process for politics sake it is the exercise of a citizen right which cannot succeed unless it has that first level of merit. The public interest is all too easily defined through the prism of political expediency; the input of ordinary people is needed to make the point that it has other dimensions.