Robin Harris, former adviser to Margaret Thatcher, lambasts at NRO the way judicial processes are being used and (he says) abused in the UK for foreign or other political purposes:

The British authorities allowed themselves to become dupes of judicial manipulation, and it will be hard to claw back towards common sense. Serbia is a signatory to the European Convention on Extradition. This should mean — but does not — that its courts conduct their business fairly. No one, knowing the circumstances, could imagine that Ganic would receive a fair trial in Belgrade. Yet Britain has limited its own options, by legislation passed in 2003 that reduces the scope for ministers to intervene to stop such cases.

Any present or former politician, high official, or soldier from any of the countries involved in the wars accompanying the breakup of Yugoslavia is now at risk of arrest on a politically fabricated charge if he or she comes to Britain. But one cannot stop there. Leading figures from many Western countries have also been involved in Yugoslavia’s wars, particularly in Kosovo in 1999. A Serbian court could issue warrants against these figures, too, and the British police will, as we have seen, unquestioningly act on them.

So Gordon Brown’s assurances are less than reassuring. It is not only private groups that manipulate international justice. So can states with ill-functioning judicial systems and little respect for veracity or equity.

The abuses inherent in universal jurisdiction will, therefore, continue to manifest themselves in acute form in Britain, unless radical reform is undertaken. In the meantime, Heathrow arrival gates could usefully be marked: “All hope abandon, ye who enter here.”

Fine (more or less), except that it does not take us far.

Either we make extradition arrangements or we don’t.

If we do, there are three general choices:

  • let the courts decide, according to firm criteria which respect human rights and as far as possible common sense (ie as far as possible ‘neutral’ and unpolitical decisions)
  • let Ministers decide, ditto (ie as far as possible reasonable decisions which weigh the UK public interest in an openly political way, and for which Ministers are publicly accountable)
  • some sort of messy hybrid (what we now have)

Then there is a quite separate list of questions:

  • Do we have ‘easier’ extradition arrangements for countries we regard as capable of running a fair trial (ie relatively few)?
  • If we do, how much easier should they be? Is the aim to get foreign feuding out of our courts asap?
  • How far if at all should we (courts or Ministers) look at the substance of the request and the background circumstances?
  • Do we have no extradition arrangments with countries abusing human rights (ie most of them)?

The problem with having easier extradition arrangements for some ostensibly respectable countries (including EU and would-be EU partners) is that even they may allow political murky considerations to drive extradition requests. See this Ganic case. 

The problem with having no extradition arrangements with ‘bad’ countries is that any gangster or corrupt oligarch from that country can make a beeline to the UK and hide behind those laws and/or ‘human rights.

No clearly good answer here, in either theory or practice. Reasonable people will disagree as to which extradition requests (and processes and principles) are well founded, and which are a scandal.

Robin Harris appears to advocate some sort of reserve trump card for Ministers to step in and stop any extradition or other such proceedings they dislike for foreign or other policy reasons.

That’s one way of doing it. But it opens another risk, namely that decisions made by Ministers in such circumstances will be politically motivated and capricious and therefore open to legal challenge – hard to maintain any sort of consistent principle one way or the other.

In any case, there looks to be no way to stop the UK courts having full-blown legal battles over the politics of other countries. Since even if we have a ‘let Ministers decide’ rule, decisions will be challenged in the courts on any number of procedural and substantive grounds. See the Pinochet casesnice earners for the lawyers involved, all at UK taxpayers’ expense.

As for Ejup Ganic, it may all be over next week if the Serbian government fail to put together a convincing dossier which establishes enough of a case to answer to force the matter into a substantive extradition process.

If they do produce enough evidence to achieve that outcome, the whole saga could become really very complicated. If not dramatic.