The arrest of Saif al-Islam Gaddafi, son of the now deceased Colonel, prompts the question: where should his trial take place? The arrest warrant was issued by the International Criminal Court for crimes against humanity but, assuming the crimes of which he is accused also violate the domestic law of Libya, he could be tried either in Libya or by the ICC in the Hague.
Those choices of venue may be enough but suppose he had been able to flee to another country – to Britain, for example,where he had been a student at the London School of Economics – could he have been tried here? Could his father or Saddam Hussein have been tried here? Universal jurisdiction is necessary to ensure that there is no hiding place for the world’s most brutal criminals.
Amnesty International has defined universal jurisdiction as “the ability of the court of any state to try persons for crimes committed outside its territory that are not linked to the state by the nationality of the suspect or the victims or by harm to the state’s own national interests.” Nation states have not historically favoured the idea of giving their courts jurisdiction over extra-territorial cases. British courts, for example, for centuries could only try crimes which occurred in UK territory. The only significant exceptions were piracy on the high seas and cases where a British subject was murdered abroad.
Since the foundation of the United Nations at the end of the second world war certain crimes have been identified as worthy of universal condemnation and have the special status in international law of “ius cogens” which makes them binding on all mankind. In this category are crimes against humanity, war crimes, genocide and torture. Many countries have granted their courts power to try them even when there is no apparent local connection. A recent survey by Amnesty has revealed that no less than 145 of the 193 UN member states have legislated for universal jurisdiction over one or more of these crimes. However, such powers often seem to exist more in theory than in practice. There has been a marked reluctance to adopt procedures and provide resources which will give the law practical effect.
The power of states to try such crimes must also be considered in the context of the International Criminal Court, now ten years old. Yet it is important to remember that the role of the ICC is complementary to the domestic jurisdiction of each state. In the case of Saif al-Islam the ICC may well cede jurisdiction to Libya if it is satisfied that the Libyan judicial system will be capable of a fair and secure trial.The system of international criminal justice is a pyramid with the ICC at the top and the national courts lower down but part of the same hierarchy. The ICC itself can naturally deal only with a small number of the most serious offenders so the main burden must fall upon the individual states. Unhappily, until now the record of the states in prosecuting foreign criminals entering their territory, including the United Kingdom, has been poor.
The UK is bound by the UN Convention against Torture and Inhuman and Degrading Treatment 1984. Section 134 of the Criminal Justice Act 1988 brought its provisions into domestic law with the result that prosecutions can be brought here for torture anywhere if the accused is a public official of any state. And other international crimes are justiciable in the UK as a result of the International Criminal Court Act ) if they took place after 1 January 2001.
Yet there has been barely a handful of convictions. In 2005 the Afghan warlord Faryadi Zarhad was sentenced inEngland to 20 years imprisonment for torture and hostage taking (also an extra-territorial offence) in Afghanistanin the 1990s.
The Lithuanian Anthony Sawoniuk was sentenced in 1999 under the War Crimes Act 1991 to life imprisonment for two murders in Eastern Europe. There will be no further prosecutions under that Act, which was limited to crimes committed during the second world war.
Police resources for investigation and enforcement of international crimes are limited and not clearly focused. A war crimes team within the Border Agency was established in 2004 to monitor asylum and visa applicants who may have committed international crimes, but its purpose is concerned more with ensuring that suspects do not enter the UK than with bringing them to justice.
Within the police service, responsibility rests with the Metropolitan Police Terrorism Command (SO15). Its “War Crimes/Crimes against Humanity Referral Guidelines” set out criteria for initiating an investigation. Between 1992 and 2010, 39 cases were referred to the Crown Prosecution Service but, apart from the two mentioned above, the only other prosecution was of Williams, a British soldier charged with murder of an Iraqi in Iraq. Currently, prosecutions relating to the occupation of Iraq are believed to be under investigation. In July 2011 the European Court of Human Rights in the Al-Skeini case held that UK courts had jurisdiction where a state exercised “authority and control” over territory in another state, as occurred in some parts of Iraq.
It is of course true that collecting evidence of extra-territorial crimes and bringing witnesses before a British court is at best difficult and may be impossible, but there is another serious obstacle to prosecution which is ripe for review: the immunity doctrine.
Well entrenched in international law, immunity has traditionally protected states, heads of states, and serving diplomats. The parties to the International Criminal Court statute have rejected it as a defence to any charge brought before the Court. Yet paradoxically and irrationally domestic courts in the UK and elsewhere have continued to apply it even to international crimes
Indeed, in Britain, according to a report by the Redress Trust (Extra-Territorial Jurisdiction in the European Union, December 2010) “it appears that contrary to international law immunities from prosecution are applied to a range of officials, including visiting armed forces from certain countries, ambassadors, high commissioners, and diplomatic staff”
In the Pinochet case in 1999, the House of Lords confirmed the immunity of heads of state while still in office, but Pinochet was denied immunity after ceasing to hold office. Nor was he able to claim it in any diplomatic capacity. In 2006, however, the Lords in the civil case of Mitchell and others v. Al-Dali and others overruled the Court of Appeal by extending immunity to a wide range of state officials. This decision is being challenged in the European Court of Human Rights at Strasbourg and a decision is awaited.
In December 2009 an arrest warrant was issued by a district judge at Westminster magistrates’ court against Tsipi Livni, leader of the opposition in the Israeli parliament, who was accused of committing war crimes: planning the assault on Gaza in December 2008 in which about 1300 Palestinians were killed. The warrant was withdrawn when it emerged that Ms.Livni, who planned to attend a charity conference, was not in the United Kingdom, but the Israeli government made a strong protest which led the UK government to promise to change the law. This was done in s.153 of the Police Reform and Social Responsibility Act 2011 which now requires the consent of the DPP to be given beofore a magistrate can issue an arrest warrant for an extra-territorial crime. In October 2011 Ms Livni arrived in the UK and a new application for an arrest warrant was made and the DPP’s consent requested. Before he reached a decision the FCO notified the DPP that Ms. Livni - who is a former minister but not a state official - had come to the UK on a “special mission” and that they had granted her diplomatic immunity. The DPP claimed that this could not be challenged and this view surpeisingly apears to be the view of those who made the application for the arest warrant. At any rate, the DPP’s consent was no longer relevant and the result is that the attempt to prosecute Ms Livni has been blocked by the government. The prima facie evidence of a war crime accepted two years earlier by the Westminster magistrate remains untested.
The immunity of states, politicians and diplomats may facilitate international relations but it should not exclude judicial inquiry into the most atrocious crimes. There have already been significant inroads on immunity in the commercial sphere. The State Immunity Act 1978 removed immunity of states in relation to commercial transactions entered into by the state, and the UK Supreme Court has recently denied immunity to Argentina in proceedings to enforce in Britain a judgement of a New York court.
But if government officials are amenable to the jurisdiction of the courts where they engage in financial transactions, how can it be right to allow them immunity for the worst of crimes? At the very least Parliament must bring the 1978 Act up to date in order to eliminate immunity for the most serious international crimes.