The UK government has announced recently that it plans to introduce legislation which would somewhat restrict the application of universal jurisdiction in the UK. The proposed rules do not restrict the scope of universal jurisdiction in the UK but will affect the possibility of private persons obtaining an arrest warrant in relation to universal jurisdiction crimes. The statement released by the government is as follows:
“Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.
It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy.
The Government has concluded, after careful consideration, that it would be appropriate to require the consent of the Director of Public Prosecutions before an arrest warrant can be issued to a private prosecutor in respect of an offence of universal jurisdiction.”
Is this part of the demise of universal jurisdiction? I think not. The change is only a very slight restriction on how universal jurisdiction legislation will be applied given that the consent of the UK Attorney General was always required for prosecutions under such legislation. Also, it is worth pointing out that just last year the UK extended UK jurisdiction with respect to crimes under the UK’s International Criminal Court Act. The UK has legislation that allows for universal jurisdiction over a number of crimes most notably, grave breaches of the Geneva Conventions and Torture. These laws allow for prosecutions of persons who commit those crimes anywhere in the world and the accused need not be resident in the UK at the time of prosecution. Mere presence in the UK suffices for the initation of a prosecution. By contrast, under the UK’s International Criminal Court Act 2001, the UK can exercise jurisdiction over persons who commit genocide, crimes against humanity and (other) war crimes anywhere in the world but only in cases where the crimes are committed by persons who are UK nationals or residents at the time of prosecution. So this is still a form of universal jurisdiction but more limited. Jurisdiction over those ICC crimes was backdated to 1991 and the residence test was also expanded by Chapter 3 of the Criminal Justice and Coroners Act 2009.
Although, prosecutions under these laws require the consent of the Attorney General, private persons may apply for an arrest warrant without consent. Furthermore, the standard for obtaining an arrest warrant is lower than would be required for a prosecution. There have been a number of occasions in which private persons in the UK have been able to obtain arrest warrants against visiting foreign officials (or former officials). The most recent high profile case was the warrant obtained for the arrest of Israel’s former foreign minister Tzipi Livni (see here) just before she visited Britain last year. The problem with these cases is that you get arrest warrants in cases where prosecutions are most unlikely. So these are attempts merely to embarrass the foreign officials which also end up embarrasing the UK government. Following protests by Israel, the former British government proposed changes to the law which would have forbidden the initiation of private prosecutions for universal jurisdiction offences.
The proposed changes by the current government would not abolish universal jurisdiction – even in the form of jurisdiction over persons who are merely present (but not resident) in the UK. However, responsiblity for the exercise of such jurisdiction is now even more squarely placed in the hands of public officials (see comment here).