Diplomacy, immunity and justice

After the Bahraini precedent, will leaders from Egypt, Israel and Syria have to think twice before t

A man waves a Bahraini national flag from the top of the Bahraini embassy in central London [AFP]

The British courts have long been considered a forum of independent and impartial justice. One of the principal components of this system of justice is the application of universal jurisdiction; a process which allows victims of torture committed outside its borders to bring claims before the British courts. The application of this process has recently been called into question in the case of F F, a Bahraini national, allegedly tortured during the Bahrain uprising in 2011. 

In 2012, lawyers acting for F F sought the arrest and prosecution of Prince Nasser Bin Hamad Al Khalifa, the son of the King of Bahrain, when he visited the UK during the London Olympics. The Crown Prosecution Service (CPS) declined to prosecute on the basis that Prince Nasser was entitled to rely on diplomatic immunity. Prince Nasser was allowed to return to Bahrain. This decision was challenged in the High Court and a ruling was handed down on October 7 following consent being reached by the parties that the 2012 decision had been incorrectly decided and that immunity should not be a bar to prosecution.

It is important to note that the Director of Public Prosecutions, the Head of the CPS, accepted that the decision of her predecessor in 2012 based on State Immunity was wrong. As part of the High Court ruling, the dossier of evidence will now be handed to the Metropolitan Police Counter Terrorism Command for investigation.

Other political leaders

Two questions emerge from this decision. First, whether Prince Nasser of Bahrain will now be brought before a British Court to face charges of torture; second, whether the protective shield of state immunity has now been effectively lifted that will allow for other political leaders to face trial for internationally recognised crimes such as torture, war crimes and crimes against humanity. Regrettably these things are never quite so black and white.

The High Court in its judgment effectively set out the existing obligation imposed on the UK, under national and international law, to investigate, arrest and prosecute those who are alleged to have committed acts of torture. Will this apply to other political leaders accused of such crimes if they enter the UK?

The CPS has stated that there are other obstacles to prosecuting Prince Nasser, including the lack of evidence. This is strongly disputed by lawyers acting for F F. It will now be for the Metropolitan Police to decide whether there are sufficient grounds to launch an investigation, but such a determination may be dependent on whether Prince Nasser returns to the UK. It is therefore far from conclusive that Prince Nasser will be appearing before a British Court anytime soon.

Secondly, how will this decision impact the political leaders of Israel, Egypt, Syria and elsewhere who face similar allegations? It may persuade them to think twice before travelling outside the sanctity of their own borders if they are unable to rely on diplomatic immunity.

It is, therefore, with some hesitation that I join the chorus of applause and euphoria that this recent “landmark” High Court decision appears to represent.

The decision itself is of course correct, and provides much needed clarity on the rules of diplomatic immunity. It further underpins the importance of a zero tolerance approach to allegations of torture by state actors no matter where they occur.

The world cannot continue to turn a blind eye to instances of torture that may be committed in foreign jurisdictions simply because it may not be politically expedient to address them or because of economic interests with the state in question. There are clear examples of the UK adopting such an approach.

Israeli violations

As with the situation in Bahrain, Israel’s political elite have come under increasing attack to address the violations of international humanitarian law perpetrated by State Security Forces. Attempts have been made previously to seek the arrest and prosecution of members of the Israeli government for their part in crimes committed in the occupied Palestinian territories. In 2009, an arrest warrant was sought for the previous Israeli foreign minister, Tzipi Livni.

The warrant was applied for and granted by a British judge at the City of Westminster Magistrates’ Court. It was hastily withdrawn in an embarrassing move by the Foreign and Commonwealth Office. As a result, British law was amended so that such a warrant could only be issued once the appropriate authority had been granted by the attorney general, a political appointee, thus in effect politicising the process.

It is here that I raise a question mark. The High Court in its judgment effectively set out the existing obligation imposed on the UK, under national and international law, to investigate, arrest and prosecute those who are alleged to have committed acts of torture. Will this apply to other political leaders accused of such crimes if they enter the UK?

The judgment theoretically suggests that it should, although there are of course those who would seek to argue that the position is different on the basis that the question the court was being asked was simply whether state immunity applied.

Foreign relations

Looking more broadly at what this decision means, it is likely to have an impact on other matters where political leaders accused of such crimes continue to grace our shores with apparent impunity. Those political leaders alleged to have been involved in the commission of international crimes in Gaza, Egypt, Iraq, and Syria may now be at greater risk of arrest. This will necessarily have an impact on the foreign relations between the UK and those states in question.

In this case, as with any other criminal investigation, one of the principle requirements to initiate an investigation is that the suspect is within the jurisdiction. It is here that I resist the call to join the chorus of applause.

Prince Nasser faces very serious allegations of being involved in the torture of prisoners during a pro-democracy uprising in Bahrain in 2011. He was within the jurisdiction when the arrest warrant was applied for and following a flawed decision by the DPP, he was allowed to return safely home rather than face questioning. He is now unlikely to return to the UK while the allegations remain and will instead remain within the safety of his own borders. This is the real tragedy of what has transpired. He could have potentially faced prosecution here, but in Bahrain is unlikely to face justice.

The message we must take from this is that proper procedures must be put in place for impunity to end.

Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.