Those who question whether this principle should be invoked to pursue arrest warrants against Tzipi Livni, Israel’s opposition leader, or anyone who made operational decisions during Operation Cast Lead in Gaza a year ago, should ask themselves what it is about the current legal situation in England and Wales that needs changing. The British government prides itself on having strengthened universal jurisdiction, so it is not the doctrine itself that is troubling, but its application. The specific anomaly is that while the next stage in the legal process, the issuing of charges, is subject to a veto from the attorney general acting on advice from the director of public prosecutions, the arrest warrant itself is not. It is up to a magistrate or district judge to consider whether there is a prime facie case to answer. If, however, the attorney general or even DPP were to be given the right to veto an arrest warrant before it were issued, it would have major consequences for the integrity of our legal system.
Under the current system, the number of arrest warrants issued for alleged war crimes is only a fraction of those sought. Judges do not issue arrest warrants carelessly. But that is only the first hurdle. No charges can be brought without a decision by the attorney general, who would first have to seek advice from the director of public prosecutions that a prosecution would pass the evidential test – that there was more than a 50% chance that a jury would convict the defendant having found on the evidence that it was beyond reasonable doubt that he or she had committed the offence. The system may cause political or diplomatic embarrassment, but it works.
In trying to assuage Israel’s fury, the government has done the reputation of our courts no favours. Gordon Brown telephoned Ms Livni, and the foreign secretary, David Miliband, telephoned his counterpart, Avigdor Lieberman, to apologise for the court’s action in initially issuing an arrest warrant. Who is a prime minister, foreign secretary, or any other member of the executive to apologise for the actions of another organ of state over which they should have no control? The public interest test is more nuanced. One can argue that Britain has a public interest in pursuing contacts with a former Israeli foreign minister who, if returned to power, could pursue peace talks more convincingly than the current Israeli premier. Britain can not engage with Israeli leaders if they are arrested when they step off the plane. But Britain also has a public interest in upholding its treaty obligations under the fourth Geneva convention, if the evidence exists. According to Justice Richard Goldstone, it does, and his report into Gaza was adopted by the UN Human Rights Council and further endorsed at the general assembly. Israel could obviate the need for this debate by holding an independent judicial investigation into its operation in Gaza.