Friday, December 18, 2009

Attempted Livni Arrest Prompting Legal Review in UK

In the wake of the abortive efforts to have an arrest warrant issued for Israeli opposition leader Livni in the UK under universal jurisdiction laws the diplomatic exchanges continue and the UK seems poised to actually modify their legislation.

The question of the UK's application of universal jurisdiction had apparently long been on the agenda in talks between Israeli and UK officials. That the issue had not been rectified and had boiled over into an effort to have Livni arrested has opened a painful sore between the two countries and prompted harsh rebukes from Israel and embarrassed apologies from the UK.

Proposed changes to the UK's universal jurisdiction laws have already begun, with Whitehall--the UK foreign ministry--already examining a few options. As it stands, an arrest warrant can be issued by a judge in the UK based on a petition to the court. Any actual trial, however, would need to be approved by the UK Attorney General. One proposed change would be to require the Attorney General to approve even the arrest warrant.

Palestinian groups have responded forcefully to this, suggesting that the Goldstone report provided sufficient grounds to have Livni arrested and to stand trial and that it was inappropriate to have the political echelons apologize for a legally justified act by the courts. These critics are not entirely wrong and do have a valid point about political involvement in the judiciary. The courts must operate free of political influence and it is troubling to think that the political echelons may have a say in who the court tries or ignores. It is possible to conceive of a situation where someone accused of the most heinous crimes is allowed to travel the world with impunity because their arrest would have important political or economic (trade) impacts on the state that attempted to arrest them. It's true the Attorney General in the UK is an unelected official, but the office is appointed by the Prime Minister, so there is a level of political influence.

Cases of universal jurisdiction, however, are almost by definition not purely legal. These cases incorporate instances of international relations as one country will be judging a foreigner whose crime is not linked to the country in which they are being judged. There will likely be several parties with interests in a given case and it is easy to imagine that such cases would become highly politicized. Indeed, it is quite cynical of Palestinian groups to criticize British politicians for political involvement in the Livni episode when the attempt to have Livni arrested is itself a political, and not purely legal, move. Indeed, one lawyer who commented publicly on the story, Daniel Machover, is the founder of a group called "Lawyers for Palestinian Human Rights." This group's stated mission is to use legal means to advance Palestinian self-determination, a decided political aim. (Note: To be clear, everyone, should support Palestinian Human rights and the human rights of all people. Full stop. This group defends these rights but seems to have a clear political goal.)

Turning this decision making about applying universal jurisdiction to the Attorney General seems like nothing more than a fig-leaf for political influence in the justice system. Such influence is widely seen as inappropriate in western legal systems. Perhaps the UK should do away with this illusion and clearly say what they want: a system of universal jurisdiction that can be applied selectively, sparing allied and targeting foes. Essentially, lawfare waged by the state. The reason they would never say such a thing is because it undermines the basis of legislative and executive non-intervention in the judicial branch.

Still though, it is extremely difficult to craft a system of universal jurisdiction, which is political by definition, that could not be used by interested political groups to harass opponents while at the same time, remaining judicially independent. This is a difficult legislative problem but one that could probably be best resolved by tying universal jurisdiction to existing rules in international law, for example, the Rome Statute on the International Criminal Court. Such a solution would exempt nationals whose countries have not ratified the Rome statute and would only be triggered if the conditions of the Rome statute were met.


Joe in Australia said...

I don't think people are complaining about universal jurisdiction so much as the fact that prosecution can be invoked without the involvement of a public prosecutor. We're a long way removed from the days when private citizens were obliged to act as their own prosecutors; it is now very unusual for a private citizen (say, the victim of theft or assault) to commence a prosecution without the involvement of the police or prosecutors' office. Note that these private prosecutions are precisely that - they are undertaken by individuals unsatisfied with the course of official justice, and the scope for abuse is low. In contrast, private prosecution of cases involving universal jurisdiction are typically led by public or semi-public bodies who may have an agenda involving the prosecution of entire classes of people.

I think a good case could be made for saying that private prosecutions are an aberration in a modern legal system. The best argument for the retention of private prosecution is that it is a safeguard against corrupt or inefficient public prosecutors. If so, let the use of private prosecution be limited to circumstances when the public prosecutors would reasonably have had an interest in the events - that is, for acts that allegedly took place within the court's original jurisdiction.

gyg3s said...

@joe in Australia: "I think a good case could be made for saying that private prosecutions are an aberration in a modern legal system."

If a good case could be made ... why didn't you make it?

Joe in Australia said...

It was left as an exercise for the student.

Charlie H. Ettinson said...

Hello Joe,

I'm sort of thinking aloud here, but I'm not sure it's accurate to describe this case as a private prosecution. It's true that the arrest warrant can be issued without a prior police or other similar investigation, but for the case to go ahead, my understanding is that the Attorney General's office would need to be involved. In many ways, it seems akin to me going to a judge and saying "I saw Mr. X commit a crime" and then having the judge order the police to arrest Mr. X. It's true that this is not normally how most western justice systems work, but it seems to be different than a private prosecution which I would describe as: I got to police, complain about Mr. X and then I or my lawyers prosecute Mr. X in court, not the Crown or the People.

As for your last point about private prosecutions being useful to circumvent state inaction or corruption, there I agree with you. But, in playing "devil's advocate" so to speak, that's what those who attempted to arrest Livni would probably say. They would say that the UK government is too close to the Israeli one to act on their own, so this private group must take up the mantle.

Interesting discussion....