Police Reform and Social Responsibility Bill

Memorandum submitted by Palestine Solidarity Campaign (PR 92)

About Palestine Solidarity Campaign

1. Palestine Solidarity Campaign (PSC) is an independent, non-governmental and non-party political organisation with members from many communities across Britain. PSC represents people in Britain from all faiths and political parties, who have come together to work for peace and justice for the Palestinian people.  PSC is opposed to all forms of racism, including anti-Jewish prejudice.

2. The Palestine Solidarity Campaign (PSC) campaigns for justice for the Palestinians. We also advocate for Palestinians' civil, political and human rights, in accordance with international law.

Summary of evidence

3. This submission focuses entirely on clause 151, regarding the Restriction on issue of arrest warrants in private prosecutions, which sets out that the consent of the Director of Public Prosecutions will be required when seeking the arrest of war criminals. In the view of PSC and many others this will unfairly and unjustly restrict the right of the victims of war crimes to seek justice, and is a direct result of diplomatic and political pressures on the UK Government.

4. Palestine Solidarity Campaign focuses its response on the politicisation of the arrest warrant process, from inception to delivery. There is significant evidence that this decision was taken:

a. under significant pressure from the Israeli government

b. by Ministers who had been unduly influenced by Israel, without properly considering the balance of evidence from a range of organisations

c. will almost certainly result in undue political influence on the consideration of war crime arrest applications from the Attorney General.

5. Whilst many supporters of a change in the law, including many MPs responding to correspondence from constituents shared with PSC, have stated legal cases are being taken for party political reasons or to cause political embarrassment they have not provided any evidence to substantiate this accusation. We would challenge that assertion on two main grounds:

a. There have only been ten cases of private prosecutions for war crimes put before the Courts in the last ten years. Two have resulted in arrest warrants.

b. The views of the applicant are irrelevant; what matters is that of the district judge’s consideration of the evidence placed before them by the applicants’ legal team.

c. Proponents of the change have not produced any evidence that the judge is ill-equipped to make these decisions, nor that they are politically biased when making decisions.

Pressure from the Israeli Government

6. Government sources confirmed that the Israeli Government were lobbying for a change in the law as early as 2006 [1] , following the attempt to arrest of retired General Doron Almog. The arrest warrant application was made by lawyers working for Palestinians who presented evidence of their suffering as a direct result of illegal orders from the General. Rather than apologising to the Palestinian plaintiffs and lawyers concerned that the accused was tipped off and did not disembark from his plane, Jack Straw apologised to his Israeli counterpart. At this point meetings were held with Israeli officials, but no action was taken.

7. In December 2009 the issue re-emerged when an arrest warrant was issued for Tzipi Livni, Leader of the Opposition and a member of the war cabinet during the assault on Gaza in December 2008 and January 2009. The arrest warrant was issued on Sunday 13th December 2009 and as early as Tuesday the then Prime Minister, Gordon Brown, was publicly apologising to the Israeli Government and promising to change the law as a result. [2]

8. Later that month, Deputy Foreign Minister Danny Ayalon threatened that the Israeli government was considering banning all Government visits to the UK, even to those not at risk of arrest, until the UK government changes the law allowing private citizens to bring charges against senior Israelis for war crimes [3] .

9. In January 2010 the then Attorney General, Baroness Scotland, made a speech in Jerusalem stating that Israeli leaders should not face arrest for war crimes in the UK. [4]

10. Pressure from Israel was not reserved for Labour Ministers. Following a change of Government, Israeli politicians and diplomats used the visit by the Rt Hon William Hague to put further pressure on the UK Government. Adrian Blomfield for the Telegraph reported that ‘William Hague finds face-saving compromise with Israel’ [5] after Israel announced the unilateral suspension of the UK-Israel Strategic Dialogue, despite the fact that all officials attending business as part of this dialogue could be given immunity from prosecution in the UK.

Evidence of lack of political balance and incorrect information given to justify changes

11. A number of statements have been made by politicians on all sides of the House, which will be shown by evidence from lawyers and legal groups to be inaccurate and misleading.

12. Gordon Brown wrote in the Daily Telegraph in March 2010 that "an arrest warrant for the gravest of crimes can be issued on the slightest of evidence". [6]

13. More recently Nick Clegg in a speech to the Liberal Democrat Friends of Israel when he said the existing law "never intended local magistrates to be able to issue politically-motivated arrest warrants of people visiting the UK without reasonable grounds for doing so". [7]

14. These comments have not been backed up by any evidence, are incorrect and gravely insulting to the legal considerations made by the district judge at Westminster, who specializes in matters of extradition.

15. In response to David Winnick MP about the possible wrong and harm to Britain's reputation if our domestic law on suspected war criminals were changed in order to protect former Israeli Ministers, the then Minister Ivan Lewis implied that the UK’s alliance and diplomatic relations with Israel should impact on the decision replying that:

16. "Israel is an important strategic partner and a close friend of the United Kingdom. If we are to bring peace to the middle east and make a significant contribution to kick-starting the beginning of a political process that will lead to the two-state solution, which all Members of this House fundamentally believe in, it cannot be right that leaders of Israel are unable to enter this country because of what we believe to be an unintended consequence of the universal jurisdiction laws." [8]

17. Conservative MP, Dominic Raab, referred to "the low burden of evidence needed for an arrest warrant" and said that, as Foreign Minister, Livni would not have had either direct or ultimate ‘command responsibility’ anyway.’ [9]

18. This effectively ignores Livni’s role on the War Cabinet, and evidence collected by human rights groups, including the highly respected Israeli human rights organisation, Bt Selem that it had ‘grave suspicions that the Israeli military acted unlawfully. The suspicions regarding breaches of the laws of war relate not only to the conduct of individual soldiers, but more importantly to the questions of policy’ going on to set out that these relate to ‘violation of the principles of distinction and proportionality.’ [10]

19. The Report of the United Nations Fact-Finding Mission on the Gaza Conflict, otherwise known as the Goldstone Report, indeed documents evidence that disproportionality, including the destruction of civilian infrastructure, was part of the planned strategy [11] . If the facts set out by the Goldstone report are substantiated by evidence to a Court, this may well be considered evidence of war crimes, and politicians who can be shown to be directly involved in that decision-making process would therefore have a case to answer.

20. In February last year Rt Hon Kenneth Clarke and the then Shadow Attorney General (Edward Garnier MP) visited Israel on a visit funded and organised by Conservative Friends of Israel. Conservative Friends of Israel are also campaigning for a change to the law, as can be easily seen by a visit to their website, www2.cfoi.co.uk. Kenneth Clarke and Edward Garnier met with Tzipi Livni during that visit. Following that meeting Edward Garnier made the following statement,

"The Tories will change the law if this government doesn't, although we remain happy to co-operate if there is still an appetite for reform. There is support [for] this from David Cameron and William Hague downwards. Our courts will not be used as the venue for street protest." [12]

21. In our view, it was not appropriate to use a visit funded by a partisan organisation to reassure Israel that it would not face war crime charges.

22. We are also very disappointed that, although the last government consulted on its plans to give the Attorney General responsibility for vetoing arrest warrants, no further consultation has taken place before legislation was brought forward for the role to be given to the Director of Public Prosecutions. Further consultation could have helped balance the rather skewed range of views that the Attorney General, Solicitor General, Justice Secretary and others have been exposed to.

Evidence that political interference will take place in the situation of the DPP’s decision making on arrest warrants

23. On 18 June 2008, three former Attorney Generals - Lord Lyell, Lord Morris and Lord Mayhew and the then Attorney General, Baroness Scotland, gave oral evidence to the Joint Committee on the Draft Constitutional Renewal Bill, setting out their understanding that the Attorney General has the power to direct the Director of Public Prosecution, and that it is important that this power is maintained, even if not used. [13]

24. Baroness Scotland set out that:
"I think it is really important to look at the relationship that Attorneys and Directors have had over time. One of the things that is quite interesting is that in the Glidewell Report Sir Ian Glidewell made clear, that in the event of there being a disagreement between an Attorney and a Director the Attorney's view would prevail. That is the understanding between Directors and Attorneys that has gone on for a number of years. The power of direction is a bit like the nuclear missile; you never have to use it because you have got it there."

25. This was reflected in the views of other ex-Attorney Generals including Lord Morris of Aberavon who said that "It is the ultimate nuclear weapon because unless you have the power, how can the director in each department be made to listen to your decision? "

26. In his description of his weekly meetings with the DPP he insists it is the DPP who takes the decisions: "What happens is this: you have regular meetings with the DPP maybe once a week; he or she will come along with a whole list of very serious cases and seek your advice. He or she will go away and take the decision. It is their decision, having heard your advice."

27. The very real danger of political interference in the case of war crimes is made clear by the former Conservative Attorney General, Lord Mayhew of Twysden; "I very much agree, with what has been said about the importance of the ultimate ability to direct. We always arrived at a decision which was the decision of the Director, by discussion.

It is very important that ….. the ultimately responsible person … is accountable to Parliament. How can that happen if the director is entitled to say, "Well, I am sorry, but it is my decision, and it is going to be this", and you happen to disagree with it? You have to stand up in the House of Commons and you have to say, this is a decision with which I disagree". That is not going to do much for public confidence in the criminal justice system, I suggest."

28. In the Ministry of Justice statement in July, Kenneth Clarke MP stated that:
"It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution. "
[14] These cases will only lead to successful prosecution if the Attorney General, a member of the Government, agrees to them being prosecuted, which he may rule out due to his assessment of ‘public interest.’

29. The Attorney General has confirmed it would be open for the DPP to consult the AG [15] . Evidence from past AGs suggest that he would certainly be expected to do so.

30. All of this information from past and the present Attorney Generals suggest that the DPP will consult and could be directed by the AG on privately prosecuted war crime arrest cases. There can be little doubt that the political sensitivities would be made clear to the DPP, and he would feel under pressure to take this into account, even if a direction was not issued.

31. In effect no power of direction from the Attorney General would be necessary for the AG to influence the decision because the DPP would be aware:

a. that sensitive cases are discussed with the AG

b. of the views of the Attorney General and his power to direct

c. that once the arrest warrant is issued, the Attorney General then has the power to prevent prosecution for public interest reasons.

Relationship to the peace process

32. The point has been made, most emphatically by Ivan Lewis MP above, but also by the Rt Hon Kenneth Clarke MP [16] that the UK’s involvement in the peace process will be damaged at worst, or reduced at best, if those who have taken decisions or had direct involvement in Israel’s military actions that have been linked to war crimes.

33. However, there appears to be a failure to grasp that access to justice is essential for peace. Those without any legal access to justice in their own countries, whom international law has failed, may well feel they must seek their own justice in response to war crimes committed against them, their families and friends.

Impact on prevention of future criminal activity

34. More importantly still, if Israelis and others are successful in changing the laws in the UK and other countries they may well draw the conclusion they are free to act with impunity. This again has extremely damaging consequences for the peace process, as it may result in further war crimes and further loss of trust and confidence in the UK Government and the international community.

35. The suspicion that double standards are being applied – and that certain countries enjoy impunity when they break international law – is fanning the flames of distrust and resentment against British foreign policy in the Middle East and is likely to do far more damage to Britain’s chances of acting as an honest broker in the Israel-Palestine peace process than the question of whether politicians or generals from "friendly" countries are allowed to visit the UK with legal immunity.

January 2011

[1] References

[1] ‘ UK considers curbing citizens’ right to arrest alleged war criminals’ Vikram Dodd, The Guardian Friday 3 February 2006

[2] ‘Gordon Brown reassure Israel over Tzipi Livni arrest warrant’, Ian Black, The Guardian Wed 16 December 2009

[3] ‘ Livni crisis deepens as Israel bans UK visits ’ by Anshel Pfeffer, Marcus Dysch and Martin Bright, Jewish Chronicle, December 17, 2009

[4] ‘British Government will fight legal attempts to indict Israeli Leaders in the UK ’, Rory McCarthy, Afua Hirsch The Guardian Tuesday 5 January 2010

[5] William Hague finds face-saving compromise with Israel , Adrian Blomfield, the Telegraph, 4 th November 2010

[6] Britain must protect foreign leaders from private arrest warrants, Rt Hon Gordon Brown, the Telegraph,   3rd March 2010

[7] Nick Clegg: full speech to Lib Dem Friends of Israel, Jewish Chronicle, 11 th November 2010

[8] Foreign Foreign and Commonwealth Office Questions, Hansard, 18 th January 2010

[9] ‘Why it should be harder for individuals to obtain an arrest warrant against those accused of war crimes’ Dominic Raab MP, Conservative Home website

[10] ‘Human Rights in the Occupied territories, 1 January 2009 to 30 April 2010’, Bt’Selem, Israel

[11] Human Rights In Palestine And Other Occupied Arab Territories , Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009

[12] ‘Tories tell Livni: we’ll change 'arrest' law’ , Martin Bright, the Jewish Chronicle, February 18, 2010

[13] Evidence to the Joint Committee on the Draft Constitutional Renewal Bill, 18 th June 2008

[14] 'It is important, however, that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution – otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy. ’ Rt Hon Kenneth Clarke, Ministry of Justice statement, 22 nd July 2010

[15] Questions to the Attorney General, Hansard, Tuesday 18 th January 2011

[16] Ibid.