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Home EJIL Analysis UK to Restrict Universal Jurisdiction Laws (but only slightly)

UK to Restrict Universal Jurisdiction Laws (but only slightly)

Published on July 31, 2010        Author: 

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).

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3 Responses

  1. Ruvi Ziegler

    The UK government initiative, following the March 2010 note by the Ministry of Justice on Arrest Warrants- Universal Jurisdiction, suggests a more consistent approach to the criminal process, reduces the risk of selectivity, seems sound from an international affairs perspective, and is congruent with its international obligations.

    Consistency-wise, it seeks to balance the commitment to ensuring that suspected war criminals are brought to justice with the requirement that there be sufficient evidence of suspicions to justify limitations on a person’s liberty. As Dapo Akande noted, the status quo is that ‘private persons may apply for an arrest warrant without consent’ whereas ‘prosecutions under these laws require the consent of the Attorney General’. The result may be insufficiently grounded arrest warrants, with a lower threshold (prima facie evidence). The presumption of innocence, cherished when prosecutions are brought against individuals in their home states regarding alleged violations of domestic law, should be particularly manifested in UJ cases where the jurisdictional basis is at least somewhat doubtful. Moreover, conceptually, the State, via its agent (the prosecutor) is responsible for determining when a case is solid enough to merit a criminal trial, and so it is the state that should also determine when a person’s liberty should not infringed.

    Regarding selectivity, claims are quite frequently raised regarding the ICC prosecutor’ choice of cases- see here http://allafrica.com/stories/201006070002.html (recent accusations by African parliamentarians) and a sample discussion here (http://dovjacobs.blogspot.com/2010/03/q-on-icc-and-africa-is-criticism-on.html). Risk of selectivity is more alarming when individuals may decide to pursue an internationally (renowned?) in view of potential extra-legal gains (political and others). To illustrate, one need only follow the controversy surrounding the anticipated Pope’s UK visit- see here (http://www.guardian.co.uk/commentisfree/belief/2010/apr/13/pope-prosecution-dawkins). A government sets general policy guidelines (one would hope) and is bound by reasonableness standards when making its judgments, whereas a private person is not. It is therefore less likely that frivolous warrants will be requested, let alone issued.

    Additionally, the UK government seems to exercise good judgment. Rather than combat impunity, the 2003 Ariel Sharon Belgium incident, the 2005 ‘Heathrow airport escape’ by Maj. Gen. (res. ) Doron Almog (following an arrest warrant issued under the until-then dormant 1957 Geneva Convention act), and the 2010 attempt to arrest Tzipi Livni have embarrassed the respective governments, leading the former to change the Belgian law to be rather in line with the proposed UK legislation, and forced the UK government to toe a fine line in its recent public statements.

    Notably, by following the government’s proposition, the UK will not be flouting its international obligations. For instance, under Article 146 of the Fourth Geneva Convention, a contracting party is obliged to ‘search for persons alleged to have committed or to have ordered to be committed…grave breaches, and…bring such persons, regardless of their nationality, before its own courts.’ Nothing in this stipulation requires or even suggests that the state should delegate part of its responsibility to private persons.

  2. [...] or Belgium, but ruling out applicability to the UK (though this is a point of much contention, the debate of which Joshua Rozenburg recently added to). One would have to file crimes against humanity for the [...]

  3. Ruvi Ziegler

    An update re legislative initiative:

    The Police Reform and Social Responsibility Bill was presented to the House of Commons on 30 November 2010.
    Part four, section 151: Restriction on issue of arrest warrants in private prosecutions

    New Subsection (4A): ‘Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offense to which this subsection applies, no warrant shall be issued under this section without the consent of the Director of Public Prosecutions.

    New Subsection (4C): Subsection (4A) applies to (a) a qualifying offense which is alleged to have been committed outside the United Kingdom, or (b) an ancillary offense relating to a qualifying offense where it is alleged that the qualifying offense was, or would have been, committed outside the United Kingdom.