‘Universal Jurisdiction’ counts for nothing in the twisted world of the Foreign Office
By Stuart Littlewood
While Western nations are rubbing their hands in glee at the thought of Russian Presidet Vladimir Putin being arrested and dragged before the International Criminal Court (ICC) on charges of war crimes in Ukraine, people may be shocked to learn that the UK, for more than a decade, has reneged on its international law obligations under ‘Universal Jurisdiction’ in order to save its Israeli “friends” from the clutches of the ICC.
The 1949 Geneva Conventions on the laws of war requires signatory states to pursue, prosecute or extradite those suspected of grave breaches of the conventions, such as war crimes.For that purpose the principle of Universal Jurisdiction gives a state jurisdiction over those crimes even when they didn’t occur on the state’s territory, and neither the victim nor perpetrator is a national of that state.
Ironically, in 1961 Israel used Universal Jurisdiction to prosecute a senior Nazi official, Aldolf Eichmann, for his role in the holocaust during World War II.
And here’s the rub. In 2009 Israel’s Ehud Barak, Tzipi Livni and retired general Doron Almog cancelled engagements in London for fear of being arrested. Israel complained bitterly and the then British foreign secretary, David Miliband (who is Jewish), promised that UK laws relating to Universal Jurisdiction would be amended and asked Prime Minister Gordon Brown and Justice Minister Jack Straw for urgent action.
When a general election ousted him from the Foreign Office, Miliband’s grovelling promise was eagerly taken up by his Tory replacement, William Hague, another fanatical ‘friend of Israel’, who declared that a situation where politicians like Livni could be threatened with arrest in the UK was “completely unacceptable… We will put it right through legislation… and I phoned Ms Livni amongst others to tell her about that and received a very warm welcome for our proposals.”
Never mind that the arrest warrants were issued to answer well-founded criminal charges.
Never mind that under Universal Jurisdiction all states that are party to the Geneva Conventions are under a binding obligation to seek out those suspected of having committed grave breaches of the conventions and bring them, regardless of nationality, to justice.
And never mind that there should be no hiding place for those suspected of crimes against humanity and war crimes.
But the UK government was in the habit of shirking its duty and dragging its feet until the birds had flown. So, human rights activists resorted to private arrest warrants. This was perfectly legitimate as bringing a private prosecution for a criminal offence is an ancient right in common law and, in the words of Lord Wilberforce, “a valuable constitutional safeguard against inertia or partiality on the part of the authority”. Lord Diplock, another respected Lord of Appeal, called it “a useful safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law”.
And the beauty of the private warrant was that it could be issued speedily.
Miliband’s servile action was all the more despicable because Tzipi Livni, Israel’s former foreign minister, was largely responsible for the terror that brought death and destruction to Gaza’s civilians during the blitzkrieg known as Operation Cast Lead. Showing no remorse, and with the blood of 1,400 dead Gazans (including 320 children and 109 women) on her hands and thousands more horribly maimed, Livni’s office issued a statement saying she was proud of it. Speaking later at a conference at Tel Aviv’s Institute for Security Studies, she said: “I would today take the same decisions.”
Any British government minister who brings this degree of obsequiousness to his job and is prepared to undermine our justice system in order to make the UK a safe haven for the likes of her, deserves to be judged harshly.
How the UK has undermined Universal Jurisdiction
The government’s underhand methods are explained by Lawyers for Palestinian Human Rights (LPHR) in this document. LPHR is a lawyer-based charity in the UK that works to protect and promote Palestinian human rights.
The implementation of Universal Jurisdiction in the UK – and in other States – is undoubtedly influenced by political considerations. If there are valid reasons for prosecuting under Universal Jurisdiction, the attorney-general’s consent is required and this involves consultation with government ministers on matters like international relations and national security. While the attorney-general (in theory) makes the decision independently of government, there is clearly scope for political interference or obstruction.
Even in cases where the process is adhered to and an arrest is sought, political interference has still prevailed. LPHR describes how accountability for serious international crimes committed in the occupied Palestinian territories was easily blocked, for example:
- The derailing of a plan to arrest Israel’s General Doron Almog in 2005.
- The UK government’s move to restrict private prosecutions, following the attempt to arrest former Israeli Minister Tzipi Livni in 2009.
- The granting of ‘special mission’ immunity to Livni in 2016.
In September 2005 an arrest warrant was issued at Bow Street Magistrates Court in London for former General Doron Almog in connection with alleged war crimes committed in Gaza in 2002. The allegations included his order to destroy 59 homes in revenge for the death of Israeli soldiers. When Almog visited the UK in September 2005 to speak at an event at Solihull Synagogue, he wasn’t covered by any form of immunity. British police waited for his plane to land but Almog was somehow tipped off about his intended arrest so stayed on the plane until its return to Israel.
In 2009, at Westminster Magistrates court in London, a private arrest warrant was issued for Israel’s then former Foreign Minister Tzipi Livni in relation to alleged serious offences committed during Israel’s Operation Cast Lead in Gaza in December 2008-January 2009 when she was a member of the war cabinet in the position of foreign minister. She didn’t arrive, but as a result the UK government sought to change the law in order to restrict private persons (as opposed to the state) obtaining arrest warrants for Universal Jurisdiction crimes, by requiring the consent of the director of public prosecutions before an arrest warrant can be issued. This change came into effect in September 2011.
When Livni visited the UK in October 2011 a private arrest warrant issued by a senior district judge in London in December 2009 was still in force. The legal representatives of the private individual concerned invited the director of public prosecutions to consent to Livni’s arrest but the matter was taken out of his hands by a retrospective grant of diplomatic immunity from the UK government, on the grounds that Livni was on a ‘special mission’.
This ploy has been used several times since then by our government. In 2016 Livni planned to visit the UK in a private capacity for a conference organised by an Israeli newspaper. Beforehand the War Crimes Unit of the Metropolitan Police wrote to the Israeli embassy inviting Livni to attend a (voluntary) police interview under caution in relation to her role in alleged offences committed during Operation Cast Lead. Israeli officials contacted their British counterparts in an attempt to classify Livni’s visit as a ‘special mission’ despite the fact that she no longer held any official position other than being a member of the Israeli parliament. The British Foreign and Commonwealth Office decided to recognise Livni’s visit as a ‘special mission, which provided her with immunity from arrest.
An obvious objection to the granting of ‘special mission’ immunity is that it clashes with a state’s international law obligation to ensure individuals do not enjoy impunity for serious crimes. Its use by the UK to protect the Westminster Establishment’s racist “friends” from an apartheid regime reflects the sickening decline in moral standards in government circles.
LPHR remind us that the International Court of Justice, in the Arrest Warrant case in 2002, stated that immunity to Universal Jurisdiction prosecution may be available only to a very limited category of senior officials who are serving in an official position. These include current heads of state, heads of government and foreign ministers. It does not apply to former officials. And it is on this basis that the UK government has stated that Israel’s Netanyahu cannot be arrested or detained.
Which explains why Putin isn’t too bothered about his arrest warrant and why Netanyahu desperately clings to power.