While the London government makes preparations to curtail the ability of courts to pursue war criminals, there has been no discussion of what this means to the Scottish legal system.
On first glance it may appear relatively simple. It is the UK government which has signed up to the relevant international treaties, so theoretically they run the show. They are not likely to be advocating withdrawing from international treaties though.
What the proposal from London is expected to be is that magistrates can no longer issue arrest warrants, and instead the Attorney General has veto, so that he can take into account political interests. Her equivalent in Scotland is the Lord Advocate who could take a different view on these matters.
Arrest warrants till now have been issued under the Criminal Justice Act 1988. This only though applies in England and Wales. What may be relevant in this regard instead in Scotland is Schedule 5 of the Scotland Act:
"observing and implementing international obligations, obligations under the Human Rights Convention, and obligations under community law."
If this is not considered encompassing though, the Scottish Parliament could theoretically legislate for it as criminal justice is a devolved matter. There then is the question of whether Scottish courts could bear the universal jursidiction of a war crimes trial. My understanding is that the position on this is unclear.
I'm not a lawyer, and my aim here is to kickstart a debate and get people thinking. If my analysis is correct, the Scottish position could do with tightening up on war crimes and it would be good to see that happen.
UPDATE: Craig Murray calls for the Lord Advocate to publish her opinion on the legality of the Iraq war, while Bill Wilson and a group of SNP MSPs begin action to have Tony Blair prosecuted in Scotland.
well, you just got my vote, even though i'm not scottish
Posted by: warey | 08 February 2010 at 10:42 AM