A summer of distressing international news bolsters the case for using universal jurisdiction to apprehend people accused of war crimes.
Faced with global conflict, our leaders seem oddly reticent about reaching for one weapon – law.
It has been a summer of hugely distressing international news – from the emergence of the ‘Islamic State’, to conflict in Gaza and the worrying impunity with which Russia’s president is supporting the destabilisation and partition of Ukraine.
As Gazette columnist Jonathan Goldsmith commented at the end of August: ‘Just as the world’s news is becoming so unbearable as to be unwatchable, so the fate of harassed lawyers seems to be growing worse, too.’
It is hard, as we noted in our leader comment, to avoid the conclusion that the link between the treatment of these lawyers, and the brutality evident in the news that makes the main headlines, is often very close indeed.
The response of the west has, in the case of Russian activities, been ‘targeted’ economic sanctions; earlier various individuals associated with the Syrian government were similarly targeted.
In other instances we have seen, by turns, humanitarian aid, bombing and ‘intelligence sharing’. When it comes to Gaza, there have been critical words from the US state department and some disconcertingly mollifying words from UK foreign secretary Philip Hammond.
All the while lawyers are arrested harassed and tortured, journalists are murdered, and the test for genocide is being arguably met.
No ‘directing mind’ apparently responsible for these misdeeds seems disconcerted by the sanctions or the words. How about a targeted legal response?
The Police Reform and Social Responsibility Act 2011 weakened the law on ‘universal jurisdiction’ – law designed to enable the apprehension of people accused of war crimes.
The act gave the director of public prosecutions the power to veto any private request for such an arrest warrant. As an extra precaution, something called ‘special mission’ status has also been accorded to a growing number of visiting foreign politicians.
The change was been prompted by an arrest warrant issued in 2009 for the arrest of Israel’s then-foreign minister Tzipi Livni. It was believed Livni was in the UK when the court issued the warrant – in fact she was not, but had cancelled her visit because of the threat of it.
The response in 2009 to the arrest warrant was one of outrage in the Israeli government (and British government) – a far more dramatic reaction than the response to any censure associated with the events of this summer, where a degree of complacency seemed the order of the day.
The perception may be that this is anti-Israel – but the nervousness around threats to immunity seems to be the thing to give political leaders everywhere pause for thought.
Immunity from prosecution was the key issue preoccupying Fiji’s military dictator Frank Bainimarama and his colleagues as they delayed free elections. International Criminal Court charges against people like Kenya’s president Uhuru Kenyatta provoked outrage and fear in the person and their supporters. The list could go on - the clear conclusion in each case is that those concerned mind the legal risks very much.
Objections to universal jurisdiction often turn on the practical – put simply, how is international diplomacy to operate when (some) world leaders can’t move without being arrested?
There need be no chilling effect on diplomacy though. Direct diplomacy – conducted by heads of state, say – is not a requirement for state relations. An ambassador is a plenipotentiary and can speak and act on behalf of a state with the same authority as a cabinet member, prime minister or president, and do so under their instruction.
(There’s even a fairly strong argument that diplomacy works better when conducted through the agency of our diplomats.)
Economic sanctions are hard to row back from when the objective is not achieved – and ultimately they hurt ordinary people. In my view, cultural ‘boycotts’ – where we are urged to protest against, say, the screening of an Israeli-made film, or a talk by an Israeli academic – can be filed under ‘obnoxious’, ‘scary’ or ‘silly’.
Economic sanctions and general handwringing have had their turn, and the results have been indifferent.
Across many of the terrible news stories that prompt a call for action, if we want a reaction that goes further than indifference then revisiting our position on universal jurisdiction would seem to be the action we could take.