Moussa Koussa May Be a Criminal But He Knows Where the Bodies Are Buried. Will He Ever Be Prosecuted?

The defection of the Libyan Foreign Minister Moussa Koussa adds some spice and immediacy to current arguments over universal jurisdiction. There’s probably good prima facie evidence that he was involved in criminal acts in Libya, Britain and other countries contrary to international law, so securing a warrant for his arrest would, in theory, seem like a natural step to take. At the moment, of course, it would be entirely unnatural given that his arrival in this country was clearly facilitated by the British authorities in whose hands he securely remains. Certainly, while he is presumably being interviewed, debriefed or interrogated – take your pick on the basis of your understanding of the status of his relationship with the British – no private individual or group will get anywhere near him. For now, at least, politics, national interest and the interests of the international, UN-mandated coalition enforcing Security Council Resolution 1973, trump the immediate application of the principles of international humanitarian law. Nevertheless, the Foreign Secretary, William Hague, has stated that Moussa Koussa has not been granted immunity, therefore leaving open the possibility that, in the fullness of time, he could be prosecuted. But if the remarkably well-informed comments from senior politicians like Jack Straw and the former MI6 man interviewed by Eddie Mair on BBC Radio 4’s PM programme today (31 March), which paint a picture of what was probably a long and fruitful relationship with the British security service, are anything to go by, I for one would definitely not be putting any money on Koussa ever coming before a court.

Taking politics out of the process of apprehending people suspected of having committed war crimes, however, is what a clause (152) in the police reform and social responsibility bill now going through parliament is meant to achieve. The British government is proposing to introduce a change in the law on arrest warrants requested by private individuals in international cases to prevent what they claim to be bogus and politically motivated applications. The issue arose because a magistrate agreed in December 2009 to the issuing of an arrest warrant for Tzipi Livni, who was Israel’s Foreign Minister at the time of Cast Lead, the 2008-9 military attack on Gaza in which up to 1,400 Palestinians and 13 Israelis lost their lives. The warrant was withdrawn when it was pointed out that Livni had not actually come to the UK. Nevertheless, some politicians and pro-Israel activists were outraged that a democratically elected politician of another country could be treated in this way and that it would make it impossible for Britain to play any role as an honest broker in securing peace in the Middle East because senior Israeli figures would avoid entering the country.

The new law would mean that judges could only issue arrest warrants requested by private individuals after the Director of Public Prosecutions, Keir Starmer QC, had examined the application and agreed that it could go forward. The supporters of Clause 152 claim that it is intended to ensure that only those cases where there is a realistic chance of securing conviction would be prosecuted. The DPP is best placed to make this judgement, the argument goes, and he would do it entirely independently: ‘At the end of the day, the decision is mine, it is independent and it is reviewable’, Starmer told the Committee examining the Bill on 20 January.

No one doubts the independence and absolute integrity of the current DPP, so on the face of it, it might look as if his decision to allow the application for an arrest warrant to proceed would be based entirely on his assessment of the evidence. But behind the DPP stands the Attorney General, a political appointee, with whom the DPP would be obliged to consult since one of the grounds on which he would need to assess whether the case should go forward is whether it is in the public interest. And we can see quite clearly from the Moussa Koussa situation that the government’s interpretation of what is in the public interest would be the determining factor. It has been broadly accepted, without any proper discussion, that it’s in the public interest to refrain from prosecuting him, at least for now.

Political factors undoubtedly come into play, even if the DPP is not the one to be considering them. It would surely be very difficult for him to ignore the advice of the Attorney General on the public interest test. If he did so it might look as if he was indeed making a political judgement.

What strengthens worries on this point is the very manner in which the new clause came into being. It arose directly out of the Livni case and the very vocal objections by the Israeli government and its supporters. Therefore it hardly bodes well for the operation of Clause 152, which is supposed to keep politics out of the frame, if direct public political pressure from a foreign government appears to have been the main reason for the introduction of the clause.

This could lead to further fears that, when William Hague says (as he did in parliament on 24 March) ‘It makes this country rather ridiculous if people can get an arrest warrant for people from other countries where there is no realistic chance of prosecution …’, he is making political judgements about countries with which the government, for one reason or another, feels it needs to tread carefully. For in the case of Livni, the fact that the Goldstone Report concluded that there was strong evidence to suggest that war crimes were committed by both sides in the 2008-9 attack by Israel on Gaza is surely sufficient grounds for investigating whether the foreign minister of one of the parties held some responsibility for what was done. What does it say for the robustness and quality of our justice system if it’s feared that judges can’t decide whether the threshold of evidence has been met? In fact there have been only 10 applications for arrest warrants in 10 years and only 2 have been successful, so judges don’t seem to be exactly running riot. Indeed, it has been pointed out by a number of people that the issue of the arrest warrant for a war crime is decided only by specialist legally qualified magistrates.

In practice, if Clause 152 is passed, given that so few arrest warrants have actually been issued, little may change. But it would seriously tilt the justice system towards giving greater consideration to foreign policy priorities, which can be rather fickle, and away from the fundamental principles of justice.

What ultimately happens to Moussa Koussa may well throw light on whether universal jurisdiction for particularly heinous crimes means very much in the UK. Although David Cameron has now said that the police should be free to follow through with any enquiries they wish and that no deal has been done with the now former Foreign Minister, who is to say that the Libyan won’t be able to secure immunity if he is able to convince the British authorities that the quality of the intelligence he knows is so good, but that he will only release it to them in exchange for a deal that in effect protects him from prosecution. Or am I being too cynical?

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