Universal Jurisdiction


The concept of ‘universal jurisdiction’ is that a national court, of one country, should be able to try cases in which grave crimes against humanity are suspected, even though these crimes were not committed in the country concerned. The principle involved is that no country should be a safe haven for those thought to have committed crimes universally recognised as war crimes and crimes against humanity. It is thus to be distinguished from for example the Nuremberg Trials of 1945-49 in which states establish an international court. Some argue that, with the establishment in 2002 of the International Criminal Court in The Hague (which however not all states recognise), universal jurisdiction has become less necessary.

In the UK under current legislation any member of the public who can present serious evidence that such crimes have been committed can apply to a magistrate who can issue an arrest warrant. For a prosecution to go ahead the consent of the Attorney-General is needed. However the International Criminal Court Act (2001) allows magistrates to issue arrest warrants without reference to the Attorney-General where there is a suspicion of war crimes. The Coalition Government is currently enacting legislation such that if passed the DPP (Director of Public Prosecutions) will have the power of veto over the issuing of private arrest warrants against alleged international criminals who are visiting Britain. The problems seen with this are that (i) it would introduce a ‘political’ element (ii) the proceedings would be delayed, allowing a suspected criminal to leave the country.

It may also be said that, as a signatory to the Geneva Conventions (1949) and the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the UK has a duty to arrest and prosecute those suspected of such crimes. Article 146 of the Fourth Geneva Convention states that the UK is ‘under an 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’. The Goldstone Report, as also the reports of various organisations concerned for human rights, suggest that war crimes and crimes against humanity may indeed well have been committed during the Israeli attack on Gaza. 

The issue of universal jurisdiction came to the fore in the UK when, in December 2009, Tzipi Livni,
Israeli Foreign Minister at the time of the Israeli attack on Gaza, was due to visit the UK to speak at the Jewish National Fund conference. The recently issued Goldstone Report had suggested that the IDF had in Gaza committed war crimes and possibly crimes against humanity.

Tzipi Livni’s photostream

Tzipi Livni, 27 July 2010

Finding there to be sufficient evidence against her, a senior UK magistrate issued a warrant under the Geneva Conventions Act for her arrest. It was then discovered that she was not yet in the UK, apparently having been tipped off by Israeli officials that an arrest warrant was being prepared. The Minister of Defence and former Prime Minister Ehud Barak is also known to have abandoned plans to visit the UK fearing arrest. An Israeli military delegation likewise cancelled a visit after being told by their hosts, the British army, that they could not guarantee that they would not be arrested.

Following this incident the Labour government pledged itself to changing the law, Gordon Brown telephoning Livni to say he was ‘completely opposed’ to the issuing of the warrant and that she was very welcome to visit the UK. (Labour Friends of Israel, update 08.02.10). The then UK Foreign Secretary, David Miliband, apologizing to Livni, promised an urgent review of the law to prevent a recurrence of the situation. On a visit to Jerusalem, the then UK Attorney General, Baroness Patricia Scotland, told her audience that ‘the [British] Government is looking urgently at ways in which the UK system might be changed … and is determined that Israel’s leaders should always be able to travel freely in the UK.’ (The Times 06.01.10). However the move came up against resistance from the Justice Secretary, Jack Straw, and the legislation did not go through before the General Election.

The Coalition government pledged that it would change the law. Kenneth Clarke as Justice Minister made an announcement in July 2010. Embarrassed on his first visit to Israel as Foreign Secretary in November 2010, when Israel announced that it would suspend the UK-Israel Strategic Dialogue were there no change, William Hague as Foreign Secretary promised that measures would be introduced ‘within weeks’. The ‘Police Reform and Social Responsibility’ Bill, to which clause 152 regarding universal jurisdiction was be attached, was debated in the Commons on 30/31 March. The Committee stage in the House of Lords will continue on 6 June. The bill was supported by the Opposition Shadow Home Office team, but opposed by Labour backbenchers. Sir Gerald Kaufman commented: ‘Israeli politicians will be literally allowed to get away with murder.’ The bill will give the director of public prosecutions (DPP) the power to veto arrest warrants, but he has said that he will consult the Attorney General who will decide whether it would be in ‘the public interest’ and the DPP is likely to accede to his advise. The proposal will (so it is said) guard the right of any individual applying to the courts for an arrest warrant (which the Labour government had threatened to abolish) while protecting the system from abuse. The proposal has met with the criticism that the government is motivated by political rather than legal concerns, since there is a lack of evidence that there has been abuse.

There has been widespread campaigning against the proposed change.

An ICM European Poll showed that 58% of Europeans oppose changing the law to make it easier for those accused of war crimes to visit Europe, while only 10% are in favour of making such changes. In the UK only 7% support the change. (2000 people were polled in the UK.)

The Palestine Solidarity Campaign considers that: ‘The issue that overrides all these considerations must be the principle that politicians from any country should never feel able to commit war crimes with impunity.’ The Guardian has carried two letters signed by prominent individuals. A group of lawyers (2 Dec. 2010) comment: ‘Not only is it morally right, but it is also our international obligation to bring war criminals to justice ... It is deeply insulting to the knowledge and expertise of ... judges to suggest that they would issue warrants on the basis of flimsy evidence; while a cross-party group of MPs and others comment (13 Dec. 2010) that giving the DPP such a veto would risk political interference and ‘constitute a gross interference with the rights of the victim and the responsibilities of the judiciary’.

See Further on this site:

The UK

The Goldstone Report