Tom Harris: "stunt" and "frenzy" fears in apprehending war criminals

Further to our previous correspondence, my ongoing exchange with Tom Harris, MP.
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9 February 2010

Dear Mr Hilley

UNIVERSAL JURISDICTION

Thank you for your reply to my letter regarding universal jurisdiction. I would like to make it clear that I support the principle of universal jurisdiction absolutely. However I do not support the use of universal jurisdiction as a political stunt. In England and Wales, arrest warrants can be obtained against those alleged to have committed war crimes and acts of torture either by a private individual presenting prima facie evidence to a magistrate or by the Metropolitan Police's Anti-Terrorist Branch in co-operation with the Crown Prosecution Service (CPS).

In the case of the arrest warrant that was issued against Tzipi Livni, the warrant was issued by a magistrate based on prima facie evidence that, as Israel's foreign minister during Israel's operation in Gaza last winter, she may have committed war crimes. However, even if Tzipi Livni had visited the UK and had been arrested, any prosecution would only have been able to proceed if the CPS were able to persuade the Attorney General that the prosecution was likely to succeed and was in the public interest. This means that the magistrate route should pose little attraction to those wanting to see a prosecution and conviction. I think that it is highly likely that if Ms Livni had been arrested via the magistrate route, charges would not have been brought. The private individual who requested the arrest warrant from the magistrate would have also known this, which is presumably why he/she did not present evidence to the police. It leads me to believe that the whole thing was orchestrated not in the interests of justice, but for maximum publicity effect.

In Scotland, the magistrate route is not available. Magistrates here cannot consent to private requests for arrest warrants without a Criminal Letter from The High Court of the Justiciary, which is unlikely to be granted without the agreement of the Lord Advocate. Yet, the principle of universal jurisdiction still exists and is still important. It can be pursued via the CPS/police route and occurred in July 2005 when Afghan militia leader Faryadi Zardad was convicted of acts of torture and hostage taking.

The information allows me to draw a number of conclusions. Firstly, that arrest warrants issued by magistrates under universal jurisdiction have not, as yet, ever led to a successful prosecution. That, as in the case in Scotland, magistrate powers to issue arrest warrants under universal jurisdiction are not necessary for an individual to be prosecuted for war crimes or acts of torture. And finally, as the only ever successful prosecution under universal jurisdiction has succeeded via the CPS/police route, the issue of warrants by magistrates serves to act as nothing more than a political stunt orchestrated by a private individual to create a media and public frenzy.

It is quite possible that under existing rules, President Obama could be arrested during his next visit to the UK if an individual provided sufficient evidence about the regime in Guantanamo Bay to a magistrate. That would clearly be an absurd situation which would do irreparable damage to the UK's international reputation.

I trust this makes my position clear.

Best wishes

Tom Harris MP
Member of Parliament for Glasgow South


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19 February 2010

Dear Mr Harris

Thanks for your reply of 9 February 2010.

Like your (and Ivan Lewis's) rejection of the Goldstone report, it's another revealing example of blatant pro-Israeli bias posing as practical objection.

Over 1400 people are slaughtered in Gaza, and your response is to castigate those seeking justice as mere organisers of a "political stunt".

Even if you disapproved of this particular arrest application, it didn't stop you signing Early Day Motion (EDM) 502 in general support of universal jurisdiction. It's not difficult to see the connection between that avoidance and your condemnation of the arrest warrant applicants in the Livni case.

Doesn't the very fact of the magistrate-granted warrant against Livni indicate that there is an actual case to answer? Recall that Livni was sufficiently worried about the magistrate-granted warrant to cancel her trip. It's odd that you, unlike her, should, thus, dismiss the warrant against her as a "political stunt."

The 'logic' of your position is that the Crown Prosecution Service (CPS)/police - Attorney General (AG) route is unlikely to be actioned (you omit, of course, to say why), therefore potential warrant applicants should just accept this and refrain from seeking warrants from magistrates. In other words, sit back and do nothing.

Arrest warrants via the magistrate route may be unlikely to succeed, at present, but that doesn't invalidate their authenticity. On the other hand, are we to believe that the CPS/AG route would prove any more fruitful, given the current leanings of the political-legal establishment?

If MPs like yourself were more-readily prepared to register and vocalise the case for universal jurisdiction, including, without favour, the indictment of people like Livni, then the CPS/AG avenue might become more politically and legally viable. By adding individual and collective weight to the call for Livni to be arrested, MPs and other prominent public servants might not only help bring a prima facie criminal to justice, but also help deter similar actions by other state villains, thus helping to preserve innocent life.

Your prevarications on the Livni case further undermine citizens' recourse to the law on such matters. Removing magistrates' discretionary powers and handing more powers to the Attorney General, as currently planned, will run contrary to every international provision behind universal jurisdiction.

Just to remind you: the UK has entered into binding obligations on these issues. As submitted in this parliamentary briefing:

"In the UK, we have legislated to give our courts jurisdiction to prosecute all suspected war criminals and torturers, even where neither the victim nor the suspect has any connection with Britain. This is because, in common with all state parties, we have entered into binding legal obligations commitments (i.e. in the four 1949 Geneva Conventions and Protocol I to those Conventions – which protect civilians and those outside combat - and in the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), where states effectively promised that there will be no safe haven for perpetrators in any country party to the instruments concerned. For example, Article 146 of the Fourth Geneva Convention, ratified by the UK half a century ago on 23 September 1957, expressly states that the UK is

“under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” "

Please see here a full statement on the case for non-exceptional application of universal jurisdiction and why MPs should support EDM 502 in defence of existing international provisions:

http://www.redress.org/reports/UJ_Parliamentary_briefing_27_01_2010.pdf

Amongst which, here's one very practical reason for victims' representatives seeking an arrest warrant from a magistrate, as they're entitled to do:

"An arrest warrant is an important legal tool used by lawyers acting on behalf of victims of crime in cases of urgency, to ensure that a suspect is apprehended who might otherwise escape from the jurisdiction. Without this power, victims fear that in most cases an effective legal process will never start, for the simple reasons that the suspect will flee abroad – this is obviously a far greater statistical risk in this type of offence than most other (i.e. non-international) offences.

Specifically, in cases of serious international crimes, it has been particularly important to prevent a suspect from escaping while the police and/or Crown Prosecution Service make a fully informed decision whether to devote resources to an investigation. The police are naturally reluctant at relatively short notice to arrest such suspects using their ordinary powers of arrest. But where victims can secure the suspect’s arrest, this ensures that time is available for the Crown Prosecution Service and/or the Attorney General to consider the matter carefully and decide whether they will take over and/or consent to the prosecution of the suspect."

Contrary to these safeguard provisions, your contrived reason for inaction is helping to promote criminal impunity and immunity. All this is well recognised by Israeli and other war crimes elites.

You further claim that the arrest application would only have served "to create a media and public frenzy." That's a facile conclusion, as if the granting of such a warrant would have the public, fuelled by the media (if only most editors and journalists had the courage to make such calls) making 'frenzied' calls for Livni's (and her cohorts') prosecution.

I don't recall any particular "frenzy" in the Pinochet case. As with Livni, Pinochet was calmly pursued by studious lawyers and supporters through the courts, while the Attorney General and 'frenzied' ministers ran around Whitehall and the courts doing all they could to protect him.

The case against Livni and her associates is now well recognised. It's documented in the Goldstone findings, in Amnesty International and Human Rights Watch reports and in multiple other public accounts of Israel's human rights violations.

It may seem "absurd" to you that state elites, including Obama, should be hauled up for their involvement in torture or murderous activities (such as the illegal bombing of villages along the Pakistan/Afghan border under Obama's watch). Such is your selective view of criminality. But what about the "irreparable damage to the UK's international reputation" caused by this government's desperate efforts to circumvent universal jurisdiction, a principle which you claim to support "absolutely"?

Your lame excuses over this case and others supportive of Israel is also now in the public domain. That makes you, like Ivan Lewis and other parliamentary apologists, openly complicit in the protection of such prima facie war criminals.

So, I ask again: will you sign EDM 502 and endorse the call for alleged Israeli war crimes elites to be prosecuted?

Likewise, I note that you continue to ignore my question regarding Ivan Lewis's Labour Friends of Israel affiliations and how that motivated his refusal to endorse the Goldstone report. As one of your constituents, will you make this enquiry?

I look forward to your reply.

Yours sincerely

John Hilley