The concept of ‘universal jurisdiction’ is that a national court, of one country, should be able to try cases in which grave crimes against humanity are suspected, even though these crimes were not committed in the country concerned. The principle involved is that no country should be a safe haven for those thought to have committed crimes universally recognised as war crimes and crimes against humanity. It is thus to be distinguished from for example the Nuremberg Trials of 1945-49 in which states establish an international court. Some argue that, with the establishment in 2002 of the International Criminal Court in The Hague (which however not all states recognise), universal jurisdiction has become less necessary.

In the UK under current legislation any member of the public who can present serious evidence that such crimes have been committed can apply to a magistrate who can issue an arrest warrant. For a prosecution to go ahead the consent of the Attorney-General is needed. However the International Criminal Court Act (2001) allows magistrates to issue arrest warrants without reference to the Attorney-General where there is a suspicion of war crimes. The Coalition Government is currently enacting legislation such that if passed the DPP (Director of Public Prosecutions) will have the power of veto over the issuing of private arrest warrants against alleged international criminals who are visiting Britain. The problems seen with this are that (i) it would introduce a ‘political’ element (ii) the proceedings would be delayed, allowing a suspected criminal to leave the country.

It may also be said that, as a signatory to the Geneva Conventions (1949) and the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the UK has a duty to arrest and prosecute those suspected of such crimes. Article 146 of the Fourth Geneva Convention states that the UK is ‘under an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts’. The Goldstone Report, as also the reports of various organisations concerned for human rights, suggest that war crimes and crimes against humanity may indeed well have been committed during the Israeli attack on Gaza. 

Following this incident the Labour government pledged itself to changing the law, Gordon Brown telephoning Livni to say he was ‘completely opposed’ to the issuing of the warrant and that she was very welcome to visit the UK. (Labour Friends of Israel, update 08.02.10). The then UK Foreign Secretary, David Miliband, apologizing to Livni, promised an urgent review of the law to prevent a recurrence of the situation. On a visit to Jerusalem, the then UK Attorney General, Baroness Patricia Scotland, told her audience that ‘the [British] Government is looking urgently at ways in which the UK system might be changed … and is determined that Israel’s leaders should always be able to travel freely in the UK.’ (The Times 06.01.10). However the move came up against resistance from the Justice Secretary, Jack Straw, and the legislation did not go through before the General Election.

The Coalition government pledged that it would change the law. Kenneth Clarke as Justice Minister made an announcement in July 2010. Embarrassed on his first visit to Israel as Foreign Secretary in November 2010, when Israel announced that it would suspend the UK-Israel Strategic Dialogue were there no change, William Hague as Foreign Secretary promised that measures would be introduced ‘within weeks’. The ‘Police Reform and Social Responsibility’ Bill, to which clause 152 regarding universal jurisdiction was be attached, was debated in the Commons on 30/31 March. The Committee stage in the House of Lords will continue on 6 June. The bill was supported by the Opposition Shadow Home Office team, but opposed by Labour backbenchers. Sir Gerald Kaufman commented: ‘Israeli politicians will be literally allowed to get away with murder.’ The bill will give the director of public prosecutions (DPP) the power to veto arrest warrants, but he has said that he will consult the Attorney General who will decide whether it would be in ‘the public interest’ and the DPP is likely to accede to his advise. The proposal will (so it is said) guard the right of any individual applying to the courts for an arrest warrant (which the Labour government had threatened to abolish) while protecting the system from abuse. The proposal has met with the criticism that the government is motivated by political rather than legal concerns, since there is a lack of evidence that there has been abuse.