The UK has changed its laws to shield Israeli war crimes suspects from prosecution.(Inbal Rose/MaanImages)

October 1, 2011

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Sadly on 15 September this means of potentially achieving justice was revoked.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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