War crimes arrest warrant law changes
15 September 2011
As has been long-heralded, the law on universal jurisdiction changed today. The change is contained in the new Police Reform and Social Responsibility Act and means that although anyone can initiate war crimes proceedings, the consent of the Director of Public Prosecutions will be required before an arrest warrant is issued. The Justice Minister Ken Clarke said:
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.
The proposals have been controversial. Under the old law a person could be brought to trial and punished in any place in the United Kingdom as if the offence had been committed in the United Kingdom. and a private individual could apply to the magistrates for an arrest warrant. The consent of the Attorney General was required to proceed with a prosecution but previously this consent did not have to be obtained before a warrant of arrest is issued. The MoJ say that the evidence required for such a warrant is less onerous than would be needed than in an ordinary prosecution:
The court must simply be shown some information that an offence has been committed by the accused, and it does not need to decide that there is a realistic prospect of conviction.
However, a warrant will not be issued unless the consent of the Direction of Public Prosecutions has been obtained: see s.151 of the Bill (the Act is not online yet as far as I can tell). It is not clear what test the DPP will apply to decide whether to give his consent. War crimes legislation was initially passed following the Second World War when it was considered that certain crimes are so serious that they should not go unprosecuted, and that therefore other states should take responsibility for prosecuting them. The MoJ argue that the current system is open to abuse by people trying to obtain arrest warrants for grave crimes on the basis of flimsy evidence, usually to make a political statement or to cause embarrassment. This has led to arrest warrants being issued for high-profile foreign politicians such as Tzipi Livni (An Israeli politician) for private prosecution for war crimes, even where there is a high chance that the Attorney General’s consent to prosecution would not be forthcoming. The Pope was even threatened. They can come back now without too much fear of being arrested.
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