The House of Lords will this afternoon be looking at the Police Reform and Social Responsibility Bill. Among the sections they’re likely to scrutinise are those that deal with the question of universal jurisdiction, the principle according to which a state has the right to arrest and prosecute people accused of committing crimes against humanity outside its borders. Last year the former (and probable future) Israeli foreign minister Tzipi Livni abandoned a visit to Britain because she might be charged with war crimes over ‘Operation Cast Lead’. William Hague told the Israelis that the law would be changed. A foreign office spokesman said that this would not reflect a change in the law regarding universal jurisdiction, but would prevent interest groups misusing the law in ways that could damage Britain’s foreign relations.
(It’s important to note that Israel isn’t the only country concerned – there have also been universal jurisdiction issues involving Sri Lanka, Congo and Chile – but it is the most high profile. And of course Israel has always been a leading advocate of the international pursuit and prosecution of war criminals.)
In recent weeks at least two senior Israeli visitors to Britain, the retired general Danny Rothschild and the former defence minister Amir Peretz, have cancelled appearances in Britain because they were warned of the possibility of arrest: Rothschild again in connection with ‘Cast Lead’, Peretz with the Lebanon war. Rothschild had already spoken at the Royal United Services Institute but had to withdraw at the last minute from speaking at the Henry Jackson Society. The Peretz story is more complicated: it appears that word of an arrest warrant leaked to the Israeli authorities. They advised him to cancel his trip, but he bluffed the activists by cancelling only a speaking engagement at London University.
These two stories were well covered on the web and in the Israeli media, but ignored by the British media. By contrast, the press here reported and commented extensively on the case of the Israeli citizen Shaikh Raed Salah, who was arrested after entering Britain and is to be deported. He is said to be an Islamic extremist and an anti-semite. He has been refused bail; according to a pro-Palestinian website, this is ‘on the grounds that the home secretary must have compelling evidence for taking the steps that she did, and the court was not prepared to contravene this.’ As Ann Clwyd said in Parliament last week, it is ‘ironic that we are prepared to change the law to protect one Israeli opposition leader when another opposition leader, the Palestinian Sheikh Salah, comes here and is put straight in jail. Where is the justice in that?’
The Bill before the House of Lords says that ‘no warrant shall be issued… without the consent of the Director of Public Prosecutions’. According to the Parliament website, ‘the government’s aim in introducing this change is to prevent the courts being used for political purposes.’ So the executive takes on itself responsibility for deciding whether a particular case is ‘political’, and whether there should be an arrest or not. ‘Before authorising the arrest and detention of a visiting politician such as Henry Kissinger or Donald Rumsfeld,’ Joshua Rozenberg wrote in the Guardian, ‘the DPP would take into account any views expressed by William Hague or Liam Fox on the implications for Britain’s relations with the United States. What’s wrong with that?’
Some would argue that what is wrong with it is that it pushes the separation of powers to one side and flouts the principle of universal and impartial justice. I am not so sure. Valuable though international law is, international relations cannot always be contained within a legal framework. Attempts to do so often have perverse results. After a sharp exchange when the bill was going through the Commons in March, the justice minister Nick Herbert made an important point:
The fact is that people who are, or have been, in leading positions in their countries, with whom the government would wish to engage in discussions, may be discouraged from coming here. That is our concern. That, in turn, creates a risk of damaging our ability to help in conflict resolution or interfere with foreign policy.
My anxiety is a different one. The application of universal jurisdiction will usually be contentious; look at the Rothschild and Peretz cases. Under the arrangements proposed in the Bill they will have to be dealt with on the hoof, without warning. There will be political factors on both sides. Mistakes will be made, Britain’s relations with other countries will be damaged, and justice will not be done.