Foreign Office declares that the Israeli opposition leader enjoys temporary diplomatic immunity as she is on a ‘special mission’
By Owen Bowcott, legal affairs correspondent, guardian.co.uk
The Israeli opposition leader Tzipi Livni has avoided the possibility of prosecution in a British court for war crimes after the Foreign Office declared that she enjoys temporary diplomatic immunity.
A private application for a warrant to arrest the former foreign minister during her visit to London was made on Tuesday and had been under consideration by the director of public prosecutions, Keir Starmer QC.
But the announcement that the Foreign Office had issued a rarely heard of certificate that she was on a “special mission” infuriated Palestinian activists and human rights groups.
Legislation passed earlier this year requires the DPP to give his consent to any private prosecution for war crimes launched in courts in England and Wales to prevent politically motivated cases and to ensure that there was “solid evidence”. Under what is known as universal jurisdiction, war crimes committed anywhere in the world can be tried in UK courts.
The arrival of Livni was a significant test case. In late 2009, an arrest warrant was issued for Livni on the grounds she had been a member of the Israeli war cabinet that sanctioned the assault on Gaza in which more than a thousand Palestinians were killed. On that occasion she cancelled her visit.
In a detailed statement, the Crown Prosecution Service (CPS) revealed that it had received a fresh application for an arrest warrant on Tuesday. “No concluded view has been reached on whether there is sufficient evidence to support a realistic prospect of conviction against Ms Livni.”
On Thursday, it added, the CPS had been served with a certificate by the foreign secretary, William Hague, declaring the Foreign Office “has consented to the visit to the UK of Ms Livni as a special mission”.
“Special mission” immunity status, the CPS said, could not be challenged.
The private prosecution application had been brought on behalf of an unnamed Palestinian police officer whose brother, also a police officer, was killed during the first day of the attack on Gaza in 2008.
The case was handled in London by Daniel Machover of the solicitors Hickman and Rose. A joint statement with the Palestinian Centre for Human Rights said: “The DPP … has been blocked from any arrest decision … but not on the basis of a lack of evidence. The only reason given by the DPP is the retrospective grant of diplomatic immunity to Ms Livni by the British foreign secretary on the basis of a ‘special mission’.
“The government has abused the law in order to ensure that Ms Livni escapes accountability. Ms Livni is not a member of the Israeli government, but the leader of the opposition. This action exhibits a serious and worrying disregard for the rule of law, and appears to be in violation of the UK’s international obligations.”
Hague said: “It was an appalling situation when political abuse of our legal procedures prevented people like Ms Livni from travelling legitimately to the UK. We have dealt with this urgently as we promised to on coming to office.
“The UK will continue to honour our international obligations and make sure that people who have committed some of the most awful crimes – wherever in the world they took place – can be brought to justice in our courts.”
UK government complicit in protecting Israeli war criminals
Tzipi Livni given special immunity by Foreign and Commonwealth Office
Press release, PSC
Protesters will be gathering at 5pm today to protest against the government’s complicity in enabling Israeli war criminals to evade justice. Even following the government’s changes to the process for arrest warrants for war criminals, Livni also had to be granted ‘special mission’ status by the Foreign and Commonwealth Office to protect her from an arrest warrant. [Crown Prosecution Service statement ]
Sarah Colborne, PSC Director, said: ‘It is clear that the CPS received substantial evidence against Tzipi Livni. An arrest warrant had previously been issued against Tzipi Livni in December 2009 following significant evidence relating to her part in crimes committed by Israel during Operation Cast Lead, when over 1400 Palestinians were killed in Israel’s attack on Gaza.
‘The Israeli government has pressed Britain to change its laws to allow Israeli citizens who are suspected of war crimes to avoid arrest. But even the recent changes aren’t enough to guarantee that war criminals will not face justice. The only way that Livni could escape prosecution was by the British government issuing her with special immunity.
‘It is clear that the UK government is complicit in protecting war criminals, by providing them with immunity from prosecution. Why are they not allowing the evidence to be tested, and for the judicial system to play its proper role in determining whether someone is guilty or innocent of war crimes?
‘The government has opened the floodgates for Israelis suspected of war crimes to come to London and demand similar treatment. Tzipi Livni said she hoped the ‘hospitality for me today will herald the arrival of IDF officials in the kingdom to strengthen the bond between our countries’. http://www.israelnationalnews.com/News/Flash.aspx/221735#.To2bMdRNjh4. Israeli general Doron Almog, who was forced to flee Britain when an arrest warrant was issued against him in 2005, also announced that he wants to visit Britain now. Is the British government going to give every suspected Israeli war criminal ‘special mission’ status?
‘Those committed to peace and human rights will not rest until those responsible for Israel’s war crimes are brought to justice, and until the British government upholds international law and ends its complicity in protecting war criminals.’
PSC Press Release
Today (Thursday 6th October 2011) at 5pm, the PSC will be protesting outside Downing Street, outraged that the British government has invited Tzipi Livni to London.
Tzipi Livni – who faced an arrest warrant in the UK in 2009 over war crimes committed during Operation Cast Lead – arrived in London last night. She has avoided trips to the UK since 2009 when a judge agreed to an arrest warrant being served against her. However, she now feels that she can do so with impunity because our Government – with the support of the Opposition party – has just changed the law on universal jurisdiction to ensure there is an opportunity for the Government to block the courts from issuing an arrest warrant without their approval.
Sarah Colborne, Director of PSC, said
“The Israeli army is used to getting away with (Palestinian) murder. So in 2005, when an arrest warrant was issued for General Almog on a visit to London (which he avoided by not getting off his plane), the response from the Israeli government was not to end its illegal actions, but to work to change the law to prevent its citizens from facing justice in other countries.
This pressure by Israel intensified following the case of Tzipi Livni, who faced an arrest warrant over crimes committed during Operation Cast Lead. In response to this unrelenting pressure, the British government has just amended the law on universal jurisdiction so that in future the Director of Public Prosecutions – answerable to the Attorney General – will be required to authorise an application before a judge is allowed to consider the case for an arrest warrant. PSC will be calling on the government to arrest war criminals, not invite them for tete-a-tetes.”
The Electronic Intifada
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 Rightsand 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).
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.