Constitutional changes will undermine universal jurisdiction

When Peter Tatchell tried to conduct a citizen’s arrest on Robert Mugabe in Kensington 10 years ago, he was aggressively manhandled and later charged with public order offences. Today he could have made an application in front a judge for a warrant forcing the police to arrest Mugabe for crimes against humanity. The coalition government is about remove this right.

Mark McDonald is a human rights barrister and vice-chair (policy) of Labour Friends of Palestine and the Middle East

When Peter Tatchell tried to conduct a citizen’s arrest on Robert Mugabe in Kensington 10 years ago, he was aggressively manhandled and later charged with public order offences. Today he could have made an application in front a judge for a warrant forcing the police to arrest Mugabe for crimes against humanity. The coalition government is about remove this right.

It is proposed that before a warrant can be issued you must first get consent from the Director of Public Prosecution (DPP). This is a fundamental change to our constitutional right to bring those accused of the most serious crimes before the courts. By removing the right to apply for an arrest warrant, the effectiveness of universal jurisdiction is significantly undermined.

What is universal jurisdiction? History is littered with atrocities committed by tyrants in their own country and abroad. Throughout this time, those responsible have been free with the knowledge that they will never be brought to justice. The murder of six million Jews during the Second World War brought an end to this immunity.

The principle of universal jurisdiction gives power to the state or an individual to claim criminal jurisdiction over persons alleged to have committed crimes committed outside the boundaries of the state.

Since the Second World War, the United Nations has instituted a number of international treaties. Most important was the Geneva Conventions which finally codified the offence of war crimes. In the last two decades we have seen the UN bring to justice some of those responsible for atrocities in Rwanda, the former Yugoslavia and Sierra Leone.

It is essential that when the national authorities of countries affected by the crimes fail to act, the criminal justice system of all countries can step in to prosecute the crimes on behalf of the international community. Now more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law.

An example which has been highlighted is that of Kenneth Roth, who argued that Israel’s prosecution of Adolf Eichmann in 1961 was a recognition of universal jurisdiction. Another example was Israel’s application for an arrest warrant for Yasser Arafat in a Belguim Court, and in the UK, one can cite the arrest of General Pinochet and the recent arrest of the former president of Bosnia Ejup Ganic in March.

Under the current proposals, a private prosecution could still take place if the DPP consents to an arrest warrant. This will be the first time the DPP will be asked for consent to issue an arrest warrant. There is no guidance as to what test should be applied, however, the test for initiating a prosecution is two-fold:

• Is there a reasonable prospect of a conviction?

• It is in the public interest to prosecute?

The first test is rightly very high. It is unclear if this is to be the same test when consenting to an arrest warrant. If it is, it would be difficult to ever obtain consent and most, if not all applications, will be unlikely to succeed. The test would be much higher than that applied to a Police Constable applying for a warrant for what is likely to be a much less serious offence.

Similarly, if the DPP wishes to obtain an arrest warrant for an offence under universal jurisdiction they would first have to satisfy themselves that there is a reasonable prospect of conviction. How long will it take for a decision to be made? The nature of these cases is that a warrant may be needed very quickly.

Like many of the recent major constitutional changes, the government intends to rush this through parliament.

It seems to me, the answer is not to seek consent of the DPP before applying for an arrest but to give notice to the prosecution of the application and thereby give them the opportunity to make representations before the Court. This would allay any fears that the court is being misled or that there are alternative motives for obtaining an arrest warrant.

The current proposals are seriously flawed; it is essential that the question of arrest warrants under universal jurisdiction should first go to a select committee for full consultation.

9 Responses to “Constitutional changes will undermine universal jurisdiction”

  1. paulstpancras

    RT @leftfootfwd: Constitutional changes are "seriously flawed" http://bit.ly/d2CoFk writes Mark McDonald @LeftFootFwd

  2. Anon E Mouse

    Seems to me that with wanting ID Cards, 90 days detention, Control Orders, people arrested under the Terrorism Act for mon terrorist offences the idea of any kind of universal justice from the Labour Party is simply a joke.

    Labour are the party of CCTV and state control whereas Nick Clegg is pushing through his Freedom Bill. My advice is to join the Lib Dems and get on the side that’s winning. Oh yes.

  3. Hazico_Jo

    RT @leftfootfwd: Constitutional changes are "seriously flawed" http://bit.ly/d2CoFk writes Mark McDonald @LeftFootFwd

  4. LabourPalestine

    LFPME's Mark McDonald writes on universal jurisdiction http://fb.me/KQLB4BMc

  5. Philip Painter

    RT @lfpme: LFPME's Mark McDonald writes on universal jurisdiction http://fb.me/KQLB4BMc

  6. Mr. Mxyzptlk

    The British state likes to dabble its hands in the blood of the innocent
    universal jurisdiction just gets in the way

  7. Mr. Sensible

    Mr Mouse I’m afraid we have heard that somewhere before.

    Anyway, on the subject, I think this is a difficult one; there’s truth in what you say Mark, but several people have I think talked about the arrest of an Israeli official I think earlier this year, and I think some suggested that could impact on relations.

  8. Anon E Mouse

    Mr.Sensible – Just because you’ve heard it before doesn’t make it less true…

  9. LDFoP

    RT @lfpme: LFPME's Mark McDonald writes on universal jurisdiction http://fb.me/KQLB4BMc

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