Eileen Denza, Expert on Diplomatic law: “A response to David Pannick QC”

Further to David Pannick’s legal opinion on behalf of the Jewish Leadership Council concerning the possible changes to the law to prevent a warrant for arrest alleging war crimes being issued by a Magistrate against Israeli politicians and senior military officials who visit this country, Professor Eileen Denza gives her views on the topic.

Eileen Denza CMG is a professor at University College London, where she teaches international and diplomatic law. She was called to the Bar by Lincoln’s Inn and was previously a Legal Adviser in the Foreign and Commonwealth Office to the UK Representation to the European Communities. She was also Counsel to the European Communities Committee of the House of Lords. Professor Denza has appeared as witness before Committees of Congress, the House of Lords and House of Commons and the European Parliament and acted as consultant in litigation in the UK and US.

Arrest Warrant against Tzipi Livni

By Eileen Denza

“I agree with all of David Pannick’s analysis of the current legal position.

I do not, on the other hand, agree with him that it would be desirable to amend UK law so as to require the consent of the Attorney-General before an arrest warrant for war crimes or torture may be issued in England and Wales against a foreign visitor.  It is reasonable to require consent of the Attorney-General before a prosecution is commenced for offences against the Geneva Conventions Act or for torture, and when deciding whether to consent the Attorney-General will consider carefully the prospects of conviction in the light of the evidence and also whether it is in the public interest for proceedings to be brought.  Consideration of the public interest may, as David Pannick points out, include the prospect of proceedings being brought in a foreign State having jurisdiction on grounds of territoriality or nationality.  Whether it should also include relations between the UK and the relevant foreign State has on the other hand been a somewhat controversial question in some other recent cases.

The Government of Israel clearly take the view that ‘public interest’ should include relations between the UK and Israel and that no warrant should have been issued because Tzipi Livni is from a country which is a democracy and an ally of the UK.  The contrary view was however set out clearly and succinctly by Kate Allen in her letter to The Times on December 18, arguing that this sets up ‘a corrosive double standard that threatens the fundamental principle that justice must at all times be impartial.’

To extend the requirement of a fiat from the Attorney-General before prosecution to the mere issue by a magistrate of a warrant poses two linked risks.  The first is that it would be impracticable for the Attorney-General properly to evaluate and weigh all the relevant factors in the short time frame likely to be available.  The second risk is the danger that the short-term question of good diplomatic relations would almost always be the dominant one.  It will normally be the case that issue of a warrant against a leader from a friendly State would prejudice diplomatic relations, and the Foreign and Commonwealth Office will be swift to point this out.  If time is taken also to evaluate the evidence and prospects for proceedings in the home State, the window of opportunity for a warrant to be issued and an arrest carried out is likely to be lost.  Whether proceedings are likely in the home State will always be a controversial question.  During the proceedings for the extradition of Senator Pinochet, for example, it was often alleged that there was no prospect of his immunity in Chile being lifted, but after he was allowed to return his immunity was in fact lifted (though proceedings were never brought on grounds of his health).

I believe that framing a suitable legislative amendment would be difficult and securing its passage through Parliament would be fraught with problems.  Tzipi Livni may have been a hard case particularly as she has so recently been Foreign Minister and as such then protected by immunity (this point now clarified by the International Court of Justice in the Arrest Warrant Case).

If the UK Government take the view that a visit by a foreign leader vulnerable to issue of a warrant but not protected by diplomatic or head of state immunity is highly desirable for the purpose of some international meeting or negotiation, it is possible for the individual to be notified as a diplomatic agent by the relevant foreign State and thus covered under the Diplomatic Privileges Act 1964.  It would of course be essential to check in advance that the UK Government was content with this procedure.  Immunity and inviolability would then apply from the date of arrival in the UK and would prevent the issue of an arrest warrant.  It is likely that this would be done very rarely, but there is no obstacle in the Vienna Convention on Diplomatic Relations to short-term diplomatic appointments and the device has occasionally been used to provide appropriate immunity in cases where a visit to a particular country by a guest not clearly entitled to immunity was properly diplomatic in character.  The foreign State may not find this acceptable – but I would suggest that it would be a preferable course to giving the Attorney-General in effect a highly political power to extend protection to persons against whom there is prima facie evidence of responsibility for grave offences.”