The Rt. Hon. David Miliband MP
Secretary of State for Foreign and Commonwealth Affairs
Foreign and Commonwealth Office
King Charles Street
London SW1A 2AH
23rd December 2009
Dear Mr Miliband,
I am writing to express the deep disappointment and grave concern of the Muslim Council of Britain (the MCB) at your views with regard to the warrant which a magistrate had lawfully issued for the arrest of the former Israeli foreign minister, Tzipi Livni for suspected war crimes. As is well known the arrest did not take place and the warrant was withdrawn.
It appears that following expression of strong disapproval and anger by the Israeli government and representations by the Jewish Leadership Council you have shown willingness to review and remove the powers of magistrates in the UK to issue warrants of arrest against alleged Israeli war criminals.
As you must surely know the cornerstone of our much cherished legal system is respect for the rule of law. The separation of powers and the independence of the judiciary flow from it. It seems to us that you are allowing political exigency to undermine and erode fundamental legal traditions and conventions which are centuries old and have served our society well.
Your motivation to review and reconsider the current process for bringing war criminals to justice if found within our jurisdiction is political as well as manifestly partisan. Law in our legal system is the same for all – friend or foe. Your proposed step will treat “political friends” differently and indeed more favourably than those who may face same allegations but for whom a different process will apply. This cannot be right and will give rise to well founded perception of double standards in law enforcement.
We note that in your commitment to review and revise the process for issue of warrants by courts you have taken account of and been persuaded by the legal opinion of David Pannick QC. It is quite interesting that you have not chosen to seek views of others before making the commitment. Whilst we respect the capacity and standing of David Pannick QC to give legal advice, we do not accept that he is the only person in the legal fraternity to have expertise on matters of this kind. The matter is inherently very sensitive and it is contaminated by a perception of bias in choosing to rely solely on him. Such a major and far-reaching change in legal policy and process should not, we contend, be undertaken without due public consultation. We regret to have to say that the process that the government appears to have chosen to follow on this issue is fundamentally flawed.
It is our considered view that the change contemplated by you is such that it not only undermines judicial independence but also makes a wholly unjustified departure from the centuries old legal traditions of our country. The office of Magistracy is centuries old and people who hold such office are chosen irrespective of their political or other background and solely on the basis that they have the ability to apply the law without fear or favour. An appraisal of how their power to enforce international law has been exercised when called upon to do so will demonstrate that they have done so with competence and fairness.
Your proposed change sends out a clear signal that the government wants the courts to be subservient to political considerations. After all, the Attorney General is a political appointee and holds office, strictly speaking, at the pleasure of the Prime Minister.
The change that you propose also has the serious potential of severely reducing respect for international law and the treaties that give international jurisdiction for the pursuit of alleged war criminals. Commission of war crimes is an international crime as is engagement in torture. It is the clearly expressed wish of the international community as articulated in international law that people suspected of such crimes should be tried wherever they are found. We believe that the change that you propose may exempt some accused from prosecution and this will have a gravely adverse impact on the reputation of our country both at home as well as abroad.
You appear to be committing the government to the path of selective compliance with the enforcement of international law. This is surely not in the best interests of our country as it will add a further dimension to the double standards that our government is seen to have in relation to the politics of the Middle East.
Whilst we respect your quest to advance the prospects for peace in the Middle East, justice and fairness is not served by being or by being seen to be partisan and compliant to demands made by one major player in the conflict.
May we respectfully remind you that in your address at the Oxford Centre for Islamic Studies in May this year on ‘Building coalitions, winning consent’, you said, ‘To broaden the coalition and win consent, we need to understand the Muslim world better, or we will risk undermining the force of our own argument… we need to hold fast to our own values and support those who seek to apply them, or we will be guilty of hypocrisy…’.
It is hard to imagine how we could escape the charge of hypocrisy from those all too eager to point out our vacillation on allowing the law to take its course in the case of those suspected of committing war crimes.
We suggest that to understand the Muslim world better is to be aware of the deeply held view that our approach to states in the region is unequal and that our commitment to the observance of international law is ambivalent. Any change to the current procedures on universal jurisdiction and the right of magistrates to issue a warrant will only reinforce this view, with detrimental consequences.
The Prevent programme and your own department’s involvement in it through the ‘Bringing Foreign Policy Back Home’ project is built on the foundations of respecting the rule of law and the pillars of a democratic society. In deliberating over the recent controversy and prevaricating on upholding the rule of law, we run the risk of strengthening the claims of those who reject our democratic processes and view our commitment to law, domestic and international, as utilitarian and malleable.
We urge you to consider the grave consequences of interfering with established legal procedures and jeopardising our reputation at home and abroad.
I am copying this letter to the Minister for Justice, the Right Honourable Lord Chancellor and the Secretary of State for Communities and Local Government as your expressed views on this matter impact on their areas responsibilities in the government.
Muhammad Abdul Bari