Who cooked up Livni’s keep-out-of-jail card?
This posting has three items:
Why was Tzipi Livni’s visit to the UK accorded privileged status?
Ben White, New Statesman blog
Last month, on the day that changes in universal jurisdiction law went into effect, Israel’s former Foreign Minister Tzipi Livni said she “received a phone call” from UK Ambassador to Israel Matthew Gould telling her “there is no longer a warrant for my arrest”.
Yet when Livni arrived in Britain on Thursday, something went wrong. In what was billed as a “test case” for a law designed to remove the threat of arrest for visiting Israeli officials, Livni only avoided a warrant due to a legal assessment by the Foreign and Commonwealth Office (FCO) that she was on a “Special Mission”.
In a statement released Thursday lunchtime, the Crown Prosecution Service (CPS) revealed that it was the Special Mission status of Livni’s visit that led the Director of Public Prosecutions (DPP) to refuse to “give his consent to the private prosecutor to make an application to the court for an arrest warrant”.
Some incorrectly interpreted this as the DPP blocking an attempt to arrest Livni; in fact, as a spokesperson for the CPS had confirmed to me, what prevented an arrest warrant being issued was the Special Mission status – there was no decision regarding the prospect of conviction.
According to the CPS’s statement, the DPP took into account a case earlier this year when the High Court considered, among other things, the “legal effect” of the Special Mission certificate. But by citing this ruling, more questions are raised about what happened Thursday.
Evidence submitted to the High Court included a letter written by the FCO itself in January 2011, which described a Special Mission as “a means to conduct ad hoc diplomacy in relation to specific international business”, whose “fundamental aspect” is “the mutuality of consent of both the sending and the receiving States to the Special Mission”. In his ruling, Lord Justice Moses said that “the Special Mission represents the sending State in the same way as a permanent Diplomatic Mission represents the State who sends it”, and called it “vital” that “the consent which must be previously obtained is consent to a Special Mission” (my emphasis). Moses added: “Not every official visit is a Special Mission”.
Yet Livni, a foreign opposition politician who was not part of a wider government delegation, was afforded Special Mission status. How were FCO legal advisers able to make this analysis, if, as appears to be the case, there was no prior agreement between the British and Israeli governments that Livni’s visit would be a Special Mission?
While Foreign Secretary William Hague had publicly extended an invitation to Livni to visit the UK, the exact nature of her visit is unclear. According to pro-Israel advocacy group BICOM, it is they who “facilitated” Livni’s visit.
Questions remain to be answered. The FCO only stated that Livni’s visit had Special Mission status after a request for an opinion by the Attorney General Dominic Grieve. As the Jewish Chronicle reported, when Grieve was in the opposition he promised to “fix the situation if the Tories win power”. In February 2010, Ken Clarke and Edward Garnier met with Livni in Israel and pledged to change the law once in government; they are now the Secretary of State for Justice and Solicitor-General respectively.
There are concerns about the timing of the Special Mission announcement. According to Daniel Machover of Hickman and Rose Solicitors, once the original application for an arrest warrant was made on Tuesday 4 October, there was constant contact with the prosecutor until all went silent for a few critical hours on the morning of Thursday 6 October. What happened to those assurances that the change in legislation would not affect the ability for cases to be dealt with in an appropriately timely manner? In addition, the CPS said that the FCO certificate of Special Mission status was received – and dated – Thursday morning. Yet by 7.30am, Livni was already in London and being interviewed on the Today programme. If the certificate’s dating is irrelevant, when had the Special Mission status been agreed?
If the British and Israeli governments had secretly agreed that Livni’s visit would be a Special Mission beforehand – though there is no indication this is the case – then the idea that this was a “test case” for the new universal jurisdiction legislation is a sham. If, on the other hand, the declaration of Special Mission status was a contingency option adopted as events unfolded, then it suggests that the new legislation does not protect those who actually have a case to answer.
During her visit, Livni told Hague she hopes his “hospitality for me today will herald the arrival of IDF officials” in Britain. Former Israeli general Doron Almog, who previously escaped arrest by staying on his plane at Heathrow, has announced his intention to visit the UK “early next year”. The questions raised by this week’s visit need answers, and soon.
Ben White is a freelance journalist and writer, specialising in Israel/Palestine
Israeli Opposition leader and Kadima Party head Tzipi Livni met with British Foreign Secretary William Hague at the Foreign and Commonwealth Office in London yesterday. In their meeting, the Kadima leader and the foreign secretary discussed Israeli-British bilateral relations and the importance of building support for a two-state solution between Israelis and Palestinians. Hague described Israel as an ‘important ally’ and said it was an ‘appalling situation’ where political abuse of legal procedures prevented Livni travelling legitimately to the UK. Hague also said that yesterday’s meeting showed the ‘warmth and strength’ of the bilateral relations between Britain and Israel. For her part, Livni thanked the foreign secretary for the government’s swift move to prevent the political abuse of legal procedures through the Police Reform and Social Responsibility Act.
The visit was made possible by an amendment last month to British universal jurisdiction law, which prevented pro-Palestinian organisations from applying for a warrant for Livni’s arrest on war crimes charges. The law had prevented many high-ranking Israelis from traveling to the UK, casting a certain shadow over relations between the two countries. Livni’s visit was the first by a senior Israeli political figure since the amendment, and was thus seen as a test for the amended legislation.
Despite the amended law, pro-Palestinian lawyers issued a request to the Crown Prosecution Service to have Livni arrested when she arrived in London. Hague, however, intervened – issuing a certificate which designated Livni’s visit a ‘special mission.’ According to a previous High Court ruling, a visit by a dignitary that includes functions that would normally be taken care of by a diplomatic mission can be designated a ‘special mission.’ No court can question this designation once it is made by the Foreign Office. Israeli officials hope that Livni’s visit can pave the way for resumption of regular visits to the UK by a greater number of Israeli public figures.
A London judge ordered a former Israeli foreign minister’s arrest, but the UK is preventing this.
Daniel Machover and Raji Sourani, Al Jazeera
In December 2009, a judge in London issued a warrant for the arrest of former Israeli Foreign Minister Tzipi Livni. The judge received significant evidence indicating her individual criminal responsibility for war crimes committed during Israel’s December 27, 2008 to January 18, 2009 offensive on the Gaza Strip.
The Court’s straightforward application of the rule of law prompted a diplomatic offensive on the part of Israel, which on September 15, 2011 resulted in procedural changes to universal jurisdiction legislation in England and Wales. These changes were intended to prevent the arrest of suspected war criminals from “friendly” states.
On October 6, 2011, Ms Livni returned to the United Kingdom. A stated purpose of her visit was to celebrate this change in the law.
In advance of her visit, and acting on behalf of civilian victims of war crimes in the Gaza Strip, the Palestinian Centre for Human Rights and Hickman & Rose requested that the Director of Public Prosecutions (DPP) authorise the arrest of Ms Livni or consent to the victims applying to court for a second judicial arrest warrant. This application was made in full conformity with the recent legislative changes.
Extensive evidence indicating Ms Livni’s individual criminal responsibility was presented to the DPP, and an effective dialogue was established with senior crown prosecutors that enabled relevant, admissible additional evidence to be supplied at their request. However, following the Foreign and Commonwealth Office’s last-minute (apparently) retroactive attribution of diplomatic immunity to Ms Livni, on the basis of her visit constituting a “special mission”, the DPP issued a statement that he had been blocked from making any decision as to her arrest.
Due for due process
Three principal issues arise from this case that must be highlighted.
First, the fact that no decision was made to arrest Ms Livni was not due to any lack of evidence. Indeed, in an unusual public statement, the DPP acknowledged receipt of a significant body of evidence, which was “carefully considered by senior and experienced lawyers in the Special Crime and Counter Terrorism Division of the CPS” (Crown Prosecution Service).
As confirmed in the statement, these lawyers did not reach a decision on the evidence, as their work was blocked by the attribution of Special Mission immunity. If the evidence was insufficient to justify an arrest, it is difficult to see what prompted the intervention of the Foreign and Commonwealth Office (FCO).
Second, recent changes to the United Kingdom’s universal jurisdiction law did not preclude the potential arrest of Ms Livni. However, by preventing direct access to the Court, these changes most definitely hampered efforts by the victims to seek redress, slowing the process down sufficiently to allow the FCO to produce a certificate of immunity and for Ms Livni to leave the jurisdiction.
The FCO decision was made behind everyone’s backs, and meanwhile the DPP delayed his decision for a crucial few hours, all of which effectively prevented the victims from bringing a successful legal challenge to the FCO decision while Ms Livni was in the country. Indeed, given the absence of the immunity certificate, Ms Livni could – and should – have been arrested on Wednesday night, prior to the FCO’s intervention.
The key point is that the new law gave Ms Livni no protection against arrest and prosecution: It was solely the (questionable) attribution of diplomatic immunity that prevented due legal process.
Finally, the FCO’s apparently retroactive attribution of Special Mission immunity to Tzipi Livni must be highlighted. As far as we can see, there are just two possibilities: Either there was a plan in advance to classify the visit as a special mission, in which case Ms Livni and the FCO set out deliberately at the beginning of the week to deceive everyone that Ms Livni was genuinely testing the new legal procedure, or the special mission was a rabbit that was pulled from the hat to prevent the law taking its course.
Both these alternatives are discreditable and the latter, which currently seems more likely, represents a complete abuse of process and of law based on the known facts. In any event, the sole purpose behind the FCO actions has been to shield Ms Livni from arrest.
Ms Livni is not a member of the Israeli government, but rather is leader of the opposition. She is not an official representative of the State of Israel, and the FCO has been notably silent on whether there was prior agreement between the two governments that Ms Livni’s visit would be a special mission, without which immunity cannot lawfully arise.
If the law on special missions is being abused to subvert the rule of law, then this indicates a worrying disregard for the international obligations of the United Kingdom, which include the unqualified mandatory requirement to “search for persons alleged to have committed, or to have ordered to be committed … grave breaches, and … bring such persons, regardless of their nationality, before its own courts” (as per article 146 of the Fourth Geneva Convention of 1949).
In effect, whatever the true version of events, the British government illegitimately agreed to give special temporary immunity to Ms Livni, knowing an English judge had previously ordered her arrest on war crimes charges, in order to allow her time to complete a visit to London, so as to enable her to escape arrest for a second time.
These events send the dangerous message that international law is subject to political expediency, and that in the view of the UK government, universal rights are not actually universal. Modern international law was created in response to the horrors of World War II, in an attempt to protect civilian populations and to give power to the phrase “never again”.
The Fourth Geneva Convention and the Universal Declaration of Human Rights mark significant advances in the progress of humankind. These fundamental rights must be preserved at all costs; any attempt to dilute their practical impact in the name of political expediency must be resisted and challenged. At issue is the very concept of universal justice and the universality of human rights.
Hickman & Rose and the Palestinian Centre for Human Rights will continue to exert all possible efforts on behalf of the victims to ensure the equal application of the rule of law, and to uphold individual victims’ right to judicial redress.
Daniel Machover is the head of the Civil Litigation Department at London-based law firm Hickman & Rose.
Raji Sourani is the director of the Palestinian Centre for Human Rights, based in Gaza.