War hero, or war criminal? That was the debate I inherited early in 2006, returning from a posting as head of war crimes at the British Embassy in The Hague, to take on the ‘Near East’ portfolio in London. Israeli General, Doron Almog, had narrowly escaped arrest at Heathrow pursuant to a private prosecution brought by Palestinian activists. A hero to Israelis – in 1976, Almog was amongst the crack troops that rescued Israeli citizens hijacked by Palestinian terrorists and held in Entebbe. A war criminal to Palestinians – who accused him, as Commander in the Gaza strip, of demolishing homes (Israelis say the buildings were hideouts for terrorists).
Most of the cases I worked on in The Hague had been more clear-cut – like the Srebrenica massacre of 7,000 Muslim men and boys in Bosnia, or the horrific attacks on children in the long forgotten conflict in northern Uganda. International consensus in favour of criminal prosecutions had been slowly but surely built up around the moral clarity and widespread outrage that followed such wanton violence targeted against innocent civilians. Even the Bush administration – deeply sceptical about the International Criminal Court - gave tacit backing to its pursuit of those responsible for the appalling crimes in Darfur.
But, an increasing number of countries – including Britain - are also taking national jurisdiction over such international crimes. International tribunals are expensive, cumbersome and bureaucratic. Domestic courts, some argued, should plug the gaps.
In the UK, it came with a twist. Our justice system allows for ‘private prosecutions’ – pro-active citizens can bring criminal culprits to book, where the state fails to act. Today, they are relatively rare and - like the prosecution brought by the family of murdered London teenager Stephen Lawrence in 1995 - they often fail. The Crown Prosecution Service would normally take over strong cases. Still, the principle remains, although it was not designed to deal with crimes committed abroad. The procedure allows private individuals to seek an arrest warrant from a magistrate’s court, which applies a wafer thin test. Does jurisdiction exist? And is there any information that might support the allegations? No real evidential threshold. No requirement that a prosecutor check the credibility of the claims.
The government now plans to change those rules in war crimes cases. That may be controversial – but it is the right decision.