Britain's new law makes it harder but not impossible to prosecute war criminals

Although it passed through unnoticed in Britain, last week’s change of the law on universal jurisdiction was received with smug euphoria in Israel. The change marks the fulfilment of a pledge given by the Conservative Party to the increasingly influential Israel Lobby in Britain. The legal vehicle for the change was the highly controversial “Police Reform and Social Responsibility Bill”, which squeezed through parliament and received Royal Assent, becoming law on 15 September.

There are three contentious aspects of the new law. The first is the decision to replace local police authorities with directly-elected Police and Crime Commissioners. The declared aim is to improve police accountability. Critics believe this will only advance further the politicisation of the law enforcement agencies and undermine their independence. The image of the Metropolitan Police in particular was thrown into disrepute for its perceived role in the News of the World phone hacking scandal.

The second issue creating public unease is that the law sets out a new framework for regulating protests around Parliament Square. Accordingly, sections of the Serious Organised Crime and Police Act 2005 will be repealed and the police will have new powers to prevent encampments and the use of amplifiers during protests.

Human rights advocates and organizations believe this aspect of the new legislation breaches Articles 10 (freedom of expression) and 11 (freedom of association) of the European Convention on Human Rights, which was incorporated into UK legislation by way of the Human Rights Act of 1998. The coalition government is at odds on the Human Rights Act and relations with Europe. While the dominant Conservatives favour scrapping the act and looser relations with Europe, the Liberal Democrats are insisting on the exact opposite.  

The third, and arguably the most hotly contested aspect of the new law, is the introduction of an extra requirement in the process for private prosecutors seeking to obtain an arrest warrant for “universal jurisdiction” offences such as war crimes, torture and crimes against humanity. That is to say, they must obtain the consent of the Director of Public Prosecutions before an arrest warrant can be issued.

The Government’s purported aim in introducing this change is to prevent the courts “being used for political purposes”. More obviously, it is intended to provide a safety net for Israeli war crime suspects for whom warrants were issued previously by magistrates, much to the embarrassment of the friends of Israel in the British political establishment. Several high profile Israeli war crimes suspects now avoid visits to Britain for fear of arrest. Others have had to cut short visits in order to escape the long arm of the law. The list includes the former foreign minister Tzipi Livni, for her role in the Gaza war, as well as Ehud Barak, Dan Meridor, Shaul Mofaz and Doron Almog.

Commenting on the change in the law the eminent British civil rights lawyer Michael Mansfield QC told MEMO, “This measure seriously undermines the independence and integrity of the British courts. It is effectively saying that the courts cannot be trusted to analyse and assess the threshold of evidence required before an arrest warrant is issued. By requiring the DPP to be consulted first this engages the Attorney General and provides a political dimension to the idea of what is in the public interest. It entirely undermines the thrust and main purpose of ensuring there is no hiding place for those responsible for flagrant violations of international law in relation to the most serious international crimes. There should be no ‘protected countries’, everyone should be accountable.”

After the bill scraped through parliament, in spite of a tied vote – 222 for and 222 against – in the House of Lords, Britain’s ambassador to Israel, Matthew Gould, was able to convey the “good” news to the Israelis. Tzipi Livni is alleged to have gloated, “There is no longer a warrant for my arrest, because the queen of England signed the order cancelling the [universal jurisdiction] law.”

This premature triumphalism was no doubt intended for Israeli public consumption. However, let us be clear about this; the law on universal jurisdiction has not been cancelled. While the change may make it more difficult to apprehend and prosecute war criminals, Britain remains treaty-bound to the principles of universal jurisdiction. Even the gaffe prone Justice Secretary, Kenneth Clarke, got it right on this occasion when he conceded that the change ensures that only those who have perpetrated heinous war crimes, and with solid evidence, will be brought to justice using universal jurisdiction.

“We are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution,” he said.

The demand to enforce the rules of universal jurisdiction will not dissipate with the change of the law. There is still nothing to stop private citizens from seeking justice through this legal route, especially when there is compelling evidence against Israeli suspects. Moreover, the law itself is subject to challenge in the courts by Judicial Review to ensure that it becomes compatible with the Human Rights Act and Britain’s international treaty obligations, specifically the Geneva Conventions Act of 1957, which led to grave breaches of the Convention being criminalised in England and Wales.

Clearly the ball is now in the court of British police officers who, despite the change in the law, still have the right to use their discretion to investigate criminal allegations. Nothing in the law allows or compels them to relinquish their duty to investigate war crimes and crimes against humanity. After their good name has been sullied by self-seeking politicians acting on behalf of the News of the World, the need to stamp out Israel’s culture of impunity offers police officers a golden opportunity to redeem themselves.

The Police Reform and Social Responsibility Act, as it is now called, will enable members of the public to call police forces to account if they fail to act on their duty to apprehend suspected criminals. By making police chiefs answerable to local electorates if they want to stay in their jobs, the Conservative-led coalition may have provided, ironically in the circumstances, the remedy to its efforts to make life easier for its friends in Israel. Tzipi Livni’s gloating may indeed be premature. Let’s hope so.