A chance to change universal jurisdiction
The advent of David Cameron's Conservative government has created the possibility for a change in the law within the U.K.
The British ambassador to Israel, Sir Tom Phillips, who is widely admired here for his erudition and knowledge of the Middle East, concludes his term this week and is leaving the State of Israel a going-away gift.
During the past four years, Phillips and Israel's ambassadors in London have dedicated much effort to conveying to the British government Israel's strong opposition to Britain's universal jurisdiction rules. These provisions in effect permit any individual to file a petition in a lower court for the arrest of persons suspected of committing "war crimes" without even having to produce substantial evidence.
Last week the British government announced it will soon be introducing new legislation in Parliament barring the issuance of arrest warrants on suspicion of "war crimes" without the approval of the chief prosecutor. The amendment to existing law seeks to create a balance between the British commitment to ensuring that suspected war criminals are brought to justice on one hand, and the requirement that there be solid evidence of the suspicions which justify limitations on a person's liberty.
Within the past year, an arrest warrant was issued, and then rescinded, for Israel Defense Minister Ehud Barak while he was visiting Britain. Pro-Palestinian activists also initiated such warrants against former foreign minister Tzipi Livni for her diplomatic involvement in Operation Cast Lead in Gaza. For this and other reasons as well, Livni canceled a visit to London, but her case led to pressure on the British government. Meanwhile, senior Israel Defense Forces officers, both past and present, are avoiding visits to the U.K. out of concern that their presence will trigger arrest warrants.
It is not only in Britain that problems of this nature have arisen. The United States has shown interest in the subject, and brought about the repeal in Belgium of a law supporting universal jurisdiction after the U.S. threatened to withdraw NATO command headquarters from Brussels. In the meantime, via direct contact with the British government, Israel has stepped up its activity on the issue over the past year as well.
The legal situation in Britain is unusual. There it is a question of invoking universal jurisdiction against foreign nationals who were not involved per se in activities against Britain or its citizens. In 1957, the British Parliament passed the "Geneva Convention" law, which turned the provisions of the convention into concepts anchored in local British law. As a result, anyone in the U.K. can at present approach the courts and seek to invoke the law in an effort to turn ostensible international war criminals into criminal offenders in violation of British law.
The law in question had not been invoked until it was "discovered" in 2005, when an arrest warrant based on this law was issued for Maj. Gen. (res. ) Doron Almog, who was about to land in Britain. The warrant was premised on allegations involving the destruction of 30 homes in the Rafah salient. Decisive action on the part of the Israeli ambassador in London at the time, Zvi Hefetz, prompted Almog not to get off his El Al plane, according to the instructions of the most senior officials in Israel.
I was in London at that time, and met immediately afterward with the legal advisers to the British Foreign Office, who expressed determination to invoke the law in the future even though it had been a "dead letter" since it was passed. The British seem to view every piece of legislation as "vintage wine" and vigorously reject Israeli contentions that there is selective enforcement of this law when it comes to Israelis, in contrast to a lack of enforcement against other nationals.
I presented their position to the relevant officials in Israel, and did not get the impression that they took the prospect seriously that high-ranking Israelis would be arrested in the U.K. at the request of any person or organization by low-level courts, where some of the judges may not be professionals.
The advent of David Cameron's Conservative government has created the possibility for a change in the law. Indeed, British Justice Secretary Kenneth Clarke has announced that he will introduce a bill in Parliament amending the "Geneva Convention" statute. It should be remembered that no one is talking about repealing the 1957 law that deems that acts involving international war crimes are criminal, as per the British system.
The issue will in the future be thrown into the lap of the chief prosecutor, who is not considered political by nature. He can approve a judicial arrest warrant, but in such a case, the senior Israeli or other official can probably manage to leave British territory on time. That's much better than the current situation, but it's not an insurance policy.