Prosecuting War Crimes: the Courts Must Be Independent

The British government claims to defend basic
principles of justice for grave international crimes. So its reaction
to arrest warrants issued by independent courts, acting on evidence
showing an arguable case, should be straightforward: respect the
courts' rulings even if they cause political embarrassment.

However, the reactions of ministers to the arrest warrant issued,
and then withdrawn, by Westminster magistrate's court against Tzipi
Livni, the former Foreign Minister of Israel, have been neither
straightforward nor edifying. Most embarrassing of all, Patricia
Scotland, the Attorney General, gave a speech in Jerusalem on 5 January
declaring that the government was "determined that Israel's leaders
should always be able to travel freely to the UK." Her statement leaves
the impression that no matter what crimes may have been committed, no
matter what British courts may say, ministers will find a way to bypass
justice if it suits them. And it is hardly likely that the government
will limit its infringements of the rule of law to the case of Israel.

In response to criticism of the warrant against Livni, the
government is reportedly considering increasing the Attorney General's
power to intervene in cases, giving her the power to approve an arrest
warrant issued by a court on the basis of an application by a private
party. The crossbench peer and QC David Pannick has called this the
"simple" solution, to avoid embarrassing arrest warrants against
Israelis or Americans that are unlikely to result in prosecutions,
given that the Attorney General already has the power to block the
prosecutions themselves.

But these proposals ignore that the power of the Attorney General, a
government minister, to intervene in cases is an anomaly in an
independent justice system. After a decade of change to comply with
European human rights principles, English justice has been dragged into
the 21st century, with most ministers losing their power to directly
interfere in cases. The Lord Chancellor no longer sits as head of the
judiciary and there is a Supreme Court outside the House of Lords.
Successive Home Secretaries have been forced, reluctantly, to surrender
their powers to intervene on sentencing in individual cases.

The Attorney General is the only remaining minister who can still
intervene in individual cases. Soon after taking over as Prime Minister
in 2007 Gordon Brown said that the "role of Attorney General which
combines legal and ministerial functions needs to change." He was
right: a minister should not have the power to stop prosecutions,
especially when they are embarrassing to the government or their allies
(as with the Serious Fraud Office investigation into charges of
corruption involving Saudi Arabia and BAE). Council of Europe member
states, including the UK, agreed a decade ago that the power of
governments to give instructions not to prosecute in a specific case
"should, in principle, be prohibited".

Patricia Scotland was supposedly appointed as a reforming Attorney
General. Unfortunately no serious reform of the office has taken place;
the Attorney General remains a government minister with the power to
halt any prosecution of a large number of offences. Some of these
offences, such as advertising cancer treatments or failing to erect
fencing around a mine, seem merely anachronistic. But crucially the
Attorney General retains the power to approve all prosecutions for the
key international crimes: torture, crimes against humanity, genocide
and war crimes.

If the purpose is to protect the public interest, there is no need
to have the Attorney General interfere in cases. Decisions on sensitive
prosecutions are made daily by the Director of Public Prosecutions
(DPP), who is required to take such decisions both on the basis of the
likelihood of conviction (i.e. the evidence) and on the public
interest. That is how it should be: an independent prosecutor weighing
up the need for prosecution, bearing in mind that where there is
evidence of the most serious crimes having taken place, the public
interest in prosecution is high. Once the DPP has decided to prosecute,
the additional veto granted to the Attorney General, a political
figure, adds nothing more than a power to stop prosecutions that are
embarrassing to the government. This applies as much for prosecutions
of British nationals as of foreign citizens.

Last year, Human Rights Watch revealed evidence of the complicity of
British agents in torture by the Pakistani intelligence services. This
could and should be investigated as a crime. Any eventual prosecutions
could well reveal severe incompetence, at the very least, of government
in allowing such complicity to take place. Yet, even if the evidence
were overwhelming, prosecutions would require the consent of the
Attorney General, a member of the very government that risks political
embarrassment from a prosecution.

Britain is in fact the only country in western Europe that permits
such naked political interference in the prosecution of international
crimes. The solution is not to extend the Attorney General's power,
giving the government the right to meddle in the rulings of the courts
themselves. It is to remove the Attorney General's power to interfere
altogether, and allow the independent prosecutors and courts to decide,
on the basis of the evidence and an impartial view of the public
interest, who should be prosecuted for the most serious crimes,
whatever their nationality and no matter how embarrassing for the
government of the day.