Daniel Machover: There’s no doubt that international law protects these office holders

Comment

The crimes that fall fully under universal jurisdiction in England and Wales are torture, hostage taking and war crimes committed in an international armed conflict.

A wide number of people can also be prosecuted for genocide, war crimes in internal armed conflicts and crimes against humanity, but suspects generally need to live here or have a close connection here.

For all these crimes, at present the law enables a victim to apply to a district judge to issue an arrest warrant, but it then requires Attorney-General consent for there to be charges. If this person has got advice about the risk of arrest that suggests they are worried there is evidence to support criminal charges against him.

This is not the end of diplomacy. There’s a case known as the Belgian Congo ruling that said it is right, even in the worst cases, that certain top offices have immunity from the criminal jurisdiction of national courts, otherwise international diplomacy would grind to a halt. For a serving president, prime minister and foreign minister there’s no doubt that international law protects these office holders. I can categorically say we could not get an arrest warrant. If somebody came to me with good evidence I would say: you have to wait until he or she is out of office, unless you can take the case to the International Criminal Court, where this immunity does not apply, hence the arrest warrant against President Bashir of Sudan following the referral of the Darfur situation to the ICC by the UN Security Council (Resolution 1593, 31 March 2005).

There’s pressure from the US and Israel to change the law. There’s no legal pressure, it’s political pressure because it’s embarrassing for the UK. What we find alarming is there’s no discussion of the fact that the law is perfectly capable of weeding out false cases.

Daniel Machover specialises in international human rights law at Hickman & Rose solicitors