On 5 February 2010, UN Secretary General Ban Ki Moon must report to the UN Security Council on the progress of any independent investigations by Israel and Hamas into the allegations of their conduct during last year’s war on Gaza made in the Goldstone Report. It seems that his report will make for light reading as it is looking increasingly unlikely that there will be any attempts made on either side to bring those thought to be guilty of war crimes to justice. It is similarly unlikely that the Security Council will refer the matter to the International Criminal Court.
British Attorney General Baroness Patricia Scotland told an audience at the Hebrew University: “The Foreign Secretary has stated clearly that the government is looking urgently at ways in which the UK system might be changed to avoid this situation arising again and is determined that Israel’s leaders should always be able to travel freely to the UK.”
Over the past few years, Palestinians abroad have been taking increasing advantage of Universal Jurisdiction—a principle in international law which allows for any state to claim jurisdiction over individuals accused of certain crimes (genocide, torture, war crimes, crimes against humanity, enforced disappearances and extrajudicial execution) regardless of any connection with the prosecuting state. The state backs its claim on the grounds that such crimes are severe violations of international human rights law and thus are the responsibility of all states to punish where possible. Whilst this appears to be a potentially promising avenue to pursue if events take their expected course over the next few weeks, it appears likely that a serious setback may be on the cards—in the United Kingdom.
On 15 December 2009 the Westminster Magistrates’ Court in London reportedly issued an arrest warrant for Tzipi Livni for her involvement in alleged war crimes in Gaza, as she was due to visit the UK. When it was revealed that she had cancelled her trip, the warrant was withdrawn. This was the fourth attempt in as many years to have Israeli officials arrested during planned visits to the UK. What sets the Livni case apart is the reaction of the UK government. As soon as news of the warrant was leaked to the press, the British Foreign and Commonwealth Office issued a statement saying: "The UK is determined to do all it can to promote peace in the Middle East and to be a strategic partner of Israel. To do this, Israel's leaders need to be able to come to the UK for talks with the British government. We are looking urgently at the implications of this case." Prime Minister Gordon Brown and Foreign Secretary David Miliband even spoke with Livni and with Foreign Minister Lieberman to apologise for the action of the British Court. This reaction has caused outcry in legal circles. An op-ed piece in The Guardian by solicitor Daniel Malchover summed up the consternation when he said: “Who is a prime minister, foreign secretary, or any other member of the executive to apologise for the actions of another organ of state over which they should have no control?” What is more worrying in legal circles, and indeed for anyone who believes in universal jurisdiction, is the proposed changes to the law.
What is the law in the UK regarding universal jurisdiction?
The principle of universal jurisdiction is held within international treaties and conventions such as the Geneva Conventions, the Genocide Convention and the Torture Convention, which creates an obligation on all signatory states to prosecute these crimes. In the UK, ratified international treaties are not automatically incorporated into domestic law, and therefore implementing legislation is needed. Implementing legislation allows the UK to prosecute war crimes in international conflicts (for example the war in Gaza) committed by non-UK residents since 1957 (Geneva Conventions Act 1957); torture since 1988 (Criminal Justice Act 1988), and hostage-taking since 1982. The UK does not currently have legislation allowing for the prosecution of non-UK residents for genocide or crimes against humanity.
As the law currently stands in England and Wales, arrest warrants are issued by Magistrates (judges), and no prior permission for the issuance of the warrant or consultation with the Attorney General is needed. Once an arrest has been made and an investigation begun, it is then the decision of the Attorney General, in consultation with the Director of Public Prosecutions, to decide in such high profile cases whether or not there is sufficient evidence to warrant charges. If the DPP believes that the evidence collected is more than 50 percent likely to result in a conviction, then the Attorney General should allow the pressing of charges.
What Changes Does the Government Wish to Make?
As reported, the proposed change to the law that the government wishes to make is to give the Attorney General the power to veto the issuance of an arrest warrant in universal jurisdiction cases. What this means in practice is that the ability of the UK to arrest those persons suspected of war crimes, torture and hostage-taking will depend solely on who the government is friends with at the time (the Attorney General is an MP and a Government Minister—hence the involvement of the independent Director of Public Prosecutions in any decision to press charges).
The Attorney General’s own views should be noted here. On 10 January she visited Hebrew University where she made the following statement: “Britain is determined to find a way to modify its system of universal jurisdiction so that visiting Israeli leaders will not face arrest, but must do so without damaging the principle itself.” It would seem then, that the Attorney General has already made up her mind how she would act if given the power to veto the issuance of arrest warrants. The evidence does not seem to carry much weight with her.
The Government would no doubt disagree with this particular assessment, and the argument it makes in favour of the proposed change is that Israeli leaders need to be able to come to the UK for meetings on the peace process. But a number of things should be noted here. The first is that Israel has already accepted the principle of universal jurisdiction, not only by signing those international treaties which call for it, but also by its own actions. In 1961 Israel tried Adolf Eichmann for his role in the Nazi genocide of the Second World War and did so under the principle of universal jurisdiction. The second is that in spite of potential public embarrassment for the Government, the UK has positive obligations under international law to seek out and prosecute those accused of such crimes regardless of the nature of the relationship between countries. Thirdly, the involvement of the Attorney General in the process after the warrant being issued is a sufficient safeguard which already works. The only reason the government want to change the legislation is because it is now an official of an ally that is the subject of these accusations. The UK Government had no such reservations when it arrested, tried and convicted an Afghan warlord in 2005. Fourthly, if Israel would hold independent and public investigations into the allegations made in the Goldstone Report, as they are required to do then there would be no need for the UK or any other country to exercise universal jurisdiction.
When will this law-change take place?
There is currently no bill on the parliamentary agenda to change the law, though it has been the subject of much parliamentary debate in the past weeks, and with a general election only months away it may not happen until the new parliament convenes. However, the Conservative Party is strongly favoured to win the next election and they are fully in support of government plans to change the law. The Conservative Friends of Israel lobby group is also highly influential in conservative politics so it does not seem that this issue will disappear. Shadow Justice Secretary Dominic Grieve QC MP stated on 5 January: “The Government has undertaken to address the issues surrounding arrest warrants for visiting foreign politicians or officials. We will work with them to find the right balance between bringing genuine war criminals to justice, and preventing the criminal justice system from being manipulated for political ends” (emphasis added)—the implication of course being that Israelis could not possibly be genuine war criminals.
Amnesty International UK has begun a letter campaign to Prime Minister Gordon Brown to oppose any change in the law and the letter can be signed here.
Original article published on Jan. 28, 2010
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