UK rewrites war crimes law at Israel’s request

Richard Irvine The Electronic Intifada 1 October 2011

The UK has changed its laws to shield Israeli war crimes suspects from prosecution.

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Legal mechanisms developed after the end of the Second World War to more easily prosecute war criminals are now being taken off the books to preserve Israeli impunity from accountability.

In the aftermath of the Holocaust and other Nazi crimes an outraged international community demanded justice — a demand that resulted in the Nuremberg war crimes tribunal, the Universal Declaration of Human Rights and the introduction of the new legal concept of universal jurisdiction. Justice, it seemed, would be impartial and hiding places for criminals scarce.

Universal jurisdiction is a simple concept. Deriving its authority from Common Article 1 of the Geneva Conventions, it places an obligation upon all states “to respect and ensure respect” for the laws of war, effectively requiring all states to prosecute suspected war criminals regardless of where the crimes were committed.

In reality, however, universal jurisdiction has rarely been invoked. This absence of enforcement in a world replete with war crimes and crimes against humanity may seem more than a little peculiar but is easily explained. In the vast majority of states the decision to investigate and prosecute lies with the state-controlled institutions of the police and public prosecutor’s office, and these unfortunately, unless they are politically sanctioned to do so, do not spend time investigating crimes committed elsewhere.

Consequently, when suspected war criminals travel abroad they travel with virtual impunity; the preparatory investigations needed to establish a case against them having simply not been done. Until mid September, however, there was one country where war criminals stood a fair chance of having their day in court.

In the UK the judicial system allowed private parties and individuals to present their own evidence of war crimes before a magistrate who could then, if he or she felt the case was strong enough, issue a warrant for the suspect’s arrest. Consequently, in 2005 retired Israeli General Doron Almog only escaped arrest by skulking in his plane before being flown back to Israel, while in 2009 Kadima party leader Tzipi Livni cancelled her trip rather than face arrest. Other senior Israeli figures simply chose to stay away from Britain.

Sadly on 15 September this means of potentially achieving justice was revoked. In response to Israeli protests the UK government chose to change its laws rather than see Israelis arrested. In a move condemned by Amnesty International, the UK government amended the law on universal jurisdiction so that in future only the Director of Public Prosecutions can authorize the arrest of a suspected war criminal (“Tories make life easier for war criminals,” Liberal Conspiracy, 30 March 2011).

Contradictory grounds

Oddly, the UK government defended its decision on two contradictory grounds. The first reason it put forward is that the evidence used to secure the arrests stands little chance bringing about “a realistic prospect of conviction.”

This is disingenuous, to say the least. As Geoffrey Robertson, a UN appeals judge, states: “The change in the law has nothing to do — as the UK claims — with ensuring that cases proceed on solid evidence. No district judge would issue an arrest warrant lightly (“DPP may get veto power over arrest warrants for war crime suspects,” The Guardian, 22 July 2010).” Secondly, the reason for the arrest is so the suspect cannot flee while further evidence is being gathered. Indeed, this is a common way for domestic investigations to proceed.

The other equally disingenuous reason the UK gave for the change in the law is that arresting suspected war criminals may endanger the non-existent peace process.

This absurd view was advanced by UK Justice Secretary, Kenneth Clarke, who decried the previous law because it constituted a risk to “our ability to help in conflict resolution or to pursue a coherent foreign policy.”

Indeed, claiming that the previously granted arrest warrants had been politically motivated, UK Foreign Secretary William Hague declared, “We cannot have a position where Israeli politicians feel they cannot visit this country.”

However, the UK’s retreat from the implementation of universal jurisdiction is not a lone example of the power of the Israel lobby to affect states’ domestic legislation. A similar shameful episode ensued when Ariel Sharon was indicted before the Belgian courts, in that instance not just Israel but also the United States brought pressure to bear, Donald Rumsfeld going as far as to threaten to move NATO headquarters from Belgium.

Which raises the question, if enforcing international humanitarian law is a threat to peace, then why do we have it?

A more coherent view was advanced by Daniel Machover, partner at the law firm Hickman and Rose: “It is disgusting that the Foreign Office is exaggerating the impact on the peace process to get a few people who are suspects of very serious international crimes off the hook” (“Ministers move to change universal jurisdiction law,” The Guardian, 30 May 2010).

Skipping Holocaust dinner to vote

Nevertheless, the move to change the law was not unaccompanied by controversy, and The Jewish Chronicle reported that in the House of Lords the vote was tied 222 to 222 and only passed because one lord, Monroe Palmer, former president of the Liberal Democrats Friends of Israel group, put off an invitation to attend a Holocaust Education Trust dinner (“Universal jurisdiction change becomes law,” The Jewish Chronicle, 15 September 2011). That in itself seems odd; surely Palmer should have gone and perhaps learned that, to use the Latin phrase, “impunitas sempre ad deteriora invitat,” impunity always leads to greater crimes.

And certainly it is also at odds with the assessment by retired South African judge Richard Goldstone that “The lack of accountability for war crimes and possible war crimes against humanity has reached a crisis point; the ongoing lack of justice is undermining any hope for a successful peace process and reinforcing an environment that fosters violence” (“Goldstone defends Gaza war crimes report,” Ynet News, 29 September 2009).

Sadly, however, while Ilana Stein of the Israeli foreign ministry celebrated — “We are glad that Britain has made the right choice” — it seems that the lessons of the Holocaust have still to be learned.

Richard Irvine teaches a course at Queen’s University Belfast entitled “The Battle for Palestine” which explores the entire history of the conflict. Irvine has also worked voluntarily in Palestinian refugee camps in Lebanon and is coordinator of the Ireland-based Palestine Education Initiative.

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Comments

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Klaas Punt replied on

I think it is a great pity that nobody call Rumsfeld's bluf and asked him to move NATO headquarters to where they belong, Washington, USA.

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Jonathan Boud replied on

War crimes should be taken more seriously by the UK. Lack of accountability is completely unacceptable.

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Annie Power replied on

The lack of accountability of abuse of human rights by Israel and other war criminals is appalling. Shame on the US and UK governments. Children and youth around the world are watching you and learning. Your sins will come back to haunt you in the future. You are poisoning the next generation!!!

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Mary Newbery replied on

Well here is a chance for Theresa May to be even handed and treat this woman in similar fashion to Sheikh Raed Salah!

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Arthur Griffiths replied on

It is important to test the "new" process and make an application for an arrest warrant.

It can be a fairly low-cost in that the paperwork is already done having been successfully submitted the last time. Nothing has changed materially in the meantime so it should all still stand up. All they have to do is regurgitate it a present it, I would imagine initially to the Westminster Court who presumably would then refer to the DPP.

The crux of all this is that the Zionist supporters all claim that these applications are simply "political" posing with no basis in law. If an application is not made now then they are correct in their assumption and will doubtless make that point thus scuppering our moral argument. It is therefore crucial to make an application thus forcing the DPP to explain the legal justification if he declines it.

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Monica Ratcliff replied on

We have no need to wonder why this was not reported on by the BBC or any other mainstream TV media, as they are in the stranglehold of the Zionist lobby. It brings to mind the disgraceful act of inhumanity shown by Mark Thompson, present and then head of the BBC, in preventing the DEC Gaza appeal from airing in January 2010, and his nonsensical, politically-motivated defence of this outrageous decision. This is all vile and insupportable: the Israelis are succeeding in not only ignoring international law with impunity, but are rewriting it in their favour with the aid of Britain and the USA. My heart bleeds for Palestine.
I agree with Arthur Griffiths, that we should prepare a test case using the extant paperwork that was prepared for Tzipi Livni's expected visit of last year, cancelled when she feared she may be arrested, and at that time [she was] supported by the Labour government in office: it was then that a promise was made to introduce these changes to the Jurisdiction law that gave Britain the unique distinction it had.
The war crimes have not disappeared by dint of delay, neither has Justice Goldstone's report. Meanwhile, more and more crimes are being committed by Israel on a daily basis in its undeclared ongoing war against Gaza and the Palestinians of East Jerusalem and the West Bank.

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Elisabeth Clugston replied on

Yet again, our Government ignores Israel's crimes both over Operation Cast Lead. Israel's illegal occupation of Gaza and the West Bank, the building of the Seperation Wall, constant expansion of illegal Settlements on Palsetinian Land, their slow eradication of Palesinian identity.
There was enough evidence against Tzipi Livni's last expected visit, to certainly prevent her coming now. The war crimes have not disappeared ,neither has Justice Goldstone's report.