Impunity for torturers, war criminals and despots

By Imran Ahmed

It’s buried in yesterday’s Police Reform and Social Responsibility Bill. Clause 151. A profound change to the rights of British citizens.

The change is simple enough. You no longer have the right to apply to a magistrate for criminal process and an arrest warrant after presenting credible, substantive evidence of a serious breach of international criminal law. Instead, unlike for any other crime, the Director of Public Prosecutions (DPP) has to give their explicit approval before the magistrate can grant you criminal process. The right of private prosecution existed well before public bodies were instituted to take over some of the burden in prosecuting criminals – the DPP in 1879 and the Crown Prosecution Service in 1985. The right has been affirmed repeatedly in the courts and in parliament. Several cases have demonstrated that it remains a necessary bulwark against inaction on the part of the state, whether that inaction be driven by scarce resource or the desire to mollify its allies.

It’s not as common as one might think. Over the last ten years, according to the Ministry of Justice, ten applications have been made by private citizens for “universal jurisdiction” offences against foreign citizens – usually senior government officials implicated in war crimes. These cases are primarily seen by the specialist international law judges at Westminster Magistrates’ Court. Two arrest warrants have been issued, most of the cases having been dismissed despite their merits because the accused, like Robert Mugabe and Bo Xilai enjoyed state or diplomatic immunity ratione personae. It’s also difficult to get process because it requires private citizens to prove to the same level required of any public prosecutor before a magistrate sufficient cogency and intensity of evidence to demonstrate that a crime has been committed. The case might yet fall down in court against a strong defence, but the core elements have to be there.

The last warrant issued was for Tzipi Livni, the former Israeli foreign minister, for her actions in Operation Cast Lead, Israel’s actions in the Gaza War. The UN commissioned an investigation, which found major breaches of international humanitarian law on both sides. She was not covered by diplomatic immunity while in the UK as she was here for a fundraiser. All this despite the fact that if she had really wanted to come here and be immune to prosecution, all Israel would have to do was designate her trip a “Special Mission” and under the terms of the Convention on Special Missions, she would have been free to travel, as affirmed in case law. Her refusal to travel was, essentially, a stunt. And since then the lobbying to change our laws has been shrill and incessant.

So why change the law at all? It’s not clear. The new law requires DPP approval before criminal process can be granted. First, this risks politicising the independence of the DPP, who will be under intense pressure from his boss, the Attorney General (a member of the Cabinet) to comply with the government’s wishes. And it is also a massive restriction on our rights. Other suggestions include:

– Raising the evidential requirements beyond prima facie to some higher standard, closer to the requirements of the Full Code Test for the CPS;

– Requiring notice to the CPS so they can present arguments in court, as happens in Canada for such cases;

– Enshrining diplomatic immunities (which are a mix of statutory and customary international law) in domestic law to clarify (despite the fact rulings such as Pinochet in the House of Lords and much case law since then makes it quite clear ministers on official business are immune to arrest) for all that diplomacy can be done.

What is worse is that this bill has come from a coalition government that includes the Liberal Democrats, 52 of whom signed EDM 502 last year, supporting keeping the current laws as they stand. Signatories included:

Simon Hughes, MP Bermondsey and Old Southwark and Deputy Leader of the Party
Andrew Stunell, MP Hazel Grove, Parliamentary Under Secretary for Department of Communities and Local Government
Steve Webb, MP Thornbury and Yate, Minister of State for Pensions
Nick Harvey, MP North Devon, Minister of State for the Armed Forces
Mark Hunter, MP Cheadle, Lib-Dem Chief Whip, Assistant Gov. Whip (until 2010 Clegg’s former PPS)
Sarah Teather, MP Brent Central, Minister of State for Children and Families
Alistair Carmichael, MP Orkney and Shetland, Government Deputy Chief Whip, Lib-Dem Chief Whip, Comptroller of the Household
Tim Farron, MP Westmorland and Lonsdale, President of the Party
Jo Swinson, MP East Dunbartonshire, Deputy Leader of Scottish Lib Dems
Norman Baker, MP Lewes, Parliamentary Under Secretary Dept of Transport
Lynne Featherstone, MP Hornsey and Wood Green, Junior Home Office Minister
Paul Burston, MP Sutton and Cheam, Minister of State Dept of Children
Chris Huhne, MP Eastleigh, Secretary of State for Energy and Climate Change
Norman Lamb, MP North Norfolk, Chief Advisor on Policies and Parliament to Deputy Prime Minister, Spokesperson on Trade and Industry and Health
Michael Moore, MP Berwickshire, Secretary of State for Scotland, Leader of the Scottish Lib Dems
Jeremy Browne, MP Taunton, Minister for the Foreign Office
David Heath, MP Somerton and Frome, Deputy Leader of the House of Commons
Lorely Burt, MP Solihull, Chair of party
Edward Davey, MP Kingston and Surbiton, Parliamentary Under Secretary Dept Business and Innovation

And, of course, it came from a Tory party that keeps banging on about how it loves nothing more than preserving rights and removing restrictions on those rights. To impose a swingeing limitation on one of the most fundamental rights – our ability to seek recourse through the courts for criminal behaviour – and, even worse, for the most monstrous of crimes – those that are hostis humani generis; genocidaires and torturers – is a shocking blow against the fight for international justice and for the rights of British citizens.

It is time for Labour to reclaim the ground of human rights, defending international law and defending our citizens’ rights – a rare opportunity where that trifecta intersect – show some courage and affirm our responsibility to condemn transgressions and seek justice.