Arresting Developments? Restricting the Enforcement of the UK's Universal Jurisdiction Provisions

Publication Date01 May 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00905.x
AuthorSarah Williams
LEGISLATION
Arresting Developments? Restricting the Enforcement of
the UK’s Universal Jurisdiction Provisions
Sarah Williams*
Recently introduced legislative amendments limit the issue of arrest warrants on the application
of a private prosecutor where jurisdiction is based on universal jurisdiction. The amendments
addressed a ‘loophole’in English law whereby a private prosecutor could seek and be granted an
arrest warrant, generally in respect of an individual on a short term visit to the UK, even though
the consent of theAttor ney General wouldbe required for the prosecution to continue.This article
argues that these amendments addressed legitimate evidentiary and diplomatic relations concerns,
are consistent with the UK’s international obligations, and are in line with the UK’s policy on the
exercise of universaljur isdiction and with international trends.However,given the limited category
of persons who were subject to such arrest warrants under the previous law and the practice of the
UK concerning special missions, the amendments may be of limited practical signif‌icance.
INTRODUCTION
On 15 September 2011 the Police Reform and Social Responsibility Act
(the 2011 Act) received RoyalAssent. Section 153 of the Act,which entered into
force the same day,1limits the ability of a magistrate to issue an arrest warrant
for offences based on the exercise of universal jurisdiction unless the Director of
Public Prosecutions for England and Wales (DPP) has consented to the issue of
the warrant.2
Universal jurisdiction refers to the exercise of national jurisdiction by a
state in respect of crimes for which there is otherwise no link to the prosecuting
state; that is,the alleged crime did not occur within the ter ritory of the state, was
not committed by a national of that state, and did not affect its nationals or
national interest.3As the UK Government has noted, ‘[t]he main rationale for
universal jurisdiction is that the most serious international cr imes affect the
international legal order as a whole and that all states should therefore be able to
*Faculty of Law, University of New SouthWales. I wish to thank Robert Cryer, Jamie Glister, Bob
Sullivan and ColinWarbrick, as well as the anonymous referees,for their helpful comments on previous
drafts. I also wish to acknowledge Eleanor Doyle-Marwick for her research assistance.All errors remain
my own.This article was prepared with the assistance of the Law Society of New South Wales Legal
Scholarship Support Fund.
1 2011 Act, s 157(3).
2 The 2011 Act does not apply to Scotland, which does not permit a general right to private
prosecution.
3 For discussion of universal jurisdiction, see L. Reydams, Universal Jurisdiction: International and
Municipal Legal Perspectives (Oxford: OUP, 2004); C. Ryngaert, Jurisdiction in International Law
(Oxford: OUP, 2008).
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(3) MLR 368–386
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
prosecute such crimes’.4Universal jurisdiction may arise in relation to specif‌ic
crimes under customary inter national law (piracy and certain war crimes, and
potentially genocide and crimes against humanity)5or treaties that include an
‘extradite or prosecute’ provision (so-called ‘quasi’ or ‘treaty-based’ universal
jurisdiction).6In general terms, these conventions require the state to legislate to
enable the exercise of national jurisdiction in respect of offences committed
outside its territor y or by a non-national, where the suspect is present in any
territor y under that state’s jurisdiction.
The UK recognises and supports the principle of universal jurisdiction, stating
that ‘universal jurisdiction is one of the essential mechanisms established by the
international community to help ensure that those who commit some of the
most serious international cr imes are brought to justice’.7It is also party to a
number of conventions that include the obligation to extradite or prosecute,such
as the United Nations Convention Against Torture8(UNCAT) and the Geneva
Conventions.9However, while the UK has aff‌irmed the importance of securing
accountability and ending impunity for the commission of serious crimes,10 it has
consistently stated that the exercise of universal jurisdiction is subject to impor-
tant restraints.11 Such safeguards ‘ensure that [universal] jurisdiction is exercised
responsibly’ and recognise the possibility that there may be competing jurisdic-
tional claims.12
One safeguard relied on by the UK is the requirement that a prosecutor
– whether the Crown Prosecution Service (CPS) or a private prosecutor –
must obtain the consent of the Attorney General where prosecution is based
on universal jurisdiction. This requires a positive step; that is, it is not
enough that the Attorney General does not intervene to prevent a pro-
secution proceeding. Consent must be obtained before the proceeding is
4 United Kingdom of Great Britain and Northern Ireland, ‘Scope and application of the principle
of universal jurisdiction’ Note submitted to the Off‌ice of Legal Affair s pursuant to General
Assembly Resolution 65/33 of 6 December 2010, 15Apr il 2011.
5 The UK Government accepts that universal jurisdiction under customary international law exists
only in relation to piracy and certain war crimes, in particular grave breaches of the Geneva
Conventions, although it acknowledges that certain states accept the existence of universal
jurisdiction in relation to crimes against humanity and genocide: ibid.
6 For example,United Nations Convention AgainstTorture and Other Forms of Cruel,Inhuman or
Degrading Treatment or Punishment 1984, art 7. This article, will refer to jurisdiction based on
both treaty and customary international law as ‘universal jurisdiction’.
7 ‘The Scope and application of universal jurisdiction’ UK statement to the Sixth Committee 23
October 2009 at http://ukun.fco.gov.uk/en/news/?view=News&id=21078534 (last visited 20
February 2012).
8 The UK became a state party to UNCAT on 8 December 1988.
9 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Ar med
Forces in the Field, Geneva 12 August 1949; Convention (II) for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva 12
August 1949; Convention (III) relative to theTreatment of Prisoners of War, Geneva 12 August
1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva
12 August 1949.The UK became a state party to the Geneva Conventions on 23 September
1957.
10 For example, HC Deb vol 506 col 118WS 4 March 2010.
11 UK Statement, n 7 above.
12 UK note to UN, n 4 above.
Sarah Williams
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 369
(2012) 75(3) MLR 368–386

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