Universal law on crimes against humanity


May 10, 2011
Sarah Benton

haaretz
Confined to base
If the army in Israel is above the law, then all of us should be ashamed to show our faces in the world. But if the state demands of its army officers that they obey the law then it should supply the required legal protection both at home and abroad
By Anshel Pfeffer

For five years now, Israeli governments have been trying to change the situation through pressure on 10 Downing Street. Meanwhile, senior officers no longer go for a year’s study or participate in seminars and study programs at the prestigious strategic research institutes in Britain. Even the previous IDF spokesman, Avi Benayahu, went to lecture in London under an assumed name.
The Israeli approach is mistaken from the start. The principle of universal jurisdiction, which makes it possible to prosecute people suspected of crimes against humanity in any place in the world, is not necessarily immoral, and the legal claims in its favor are not much different from those that justified legislating the law against bringing Nazi criminals to justice. In any case, Israel does not have the right to intervene in the affairs of another sovereign state and to demand that it change its laws.
The problem with the universal jurisdiction laws in Britain lies with the way in which they enable opponents of Israel to draw public and media attention and to pursue IDF officers, in particular, among all the representatives of the world’s nations that visit London. But the mockery of British law is a British problem. Israel is not supposed to fight against it through diplomatic pressure but rather by legal means.
The Military Advocate General, Maj. Gen. Avichai Mandelblit, has repeatedly said that the IDF knows how to examine itself and, when necessary, to put on trial and punish soldiers and officers that have committed crimes. And in all instances, the military judicial system is subordinate in every respect and issue to the Supreme Court, and every person – Israeli or foreigner – can petition the High Court of Justice against the army.
If this is the case, and on the face of it the latest remarks by Judge Richard Goldstone uphold this, there is no need to fear universal jurisdiction which is customary only against those whose countries do not investigate their deeds or bring them to trial.
What would go on trial in London, together with an IDF officer who commanded a controversial operation, would be the entire Israeli judicial system. Instead of the Foreign Ministry advising an officer to remain in Israel as if he has something to hide, the Israeli embassy must find itself a competent attorney who at any time could go out and demand the immediate cancelation of an arrest warrant against an officer or senior Israeli official. He will use just one argument: Anyone who feels that the IDF had committed a crime toward him has the right to turn to the Supreme Court in Jerusalem. Thanks to Israeli human rights organizations such as B’Tselem and Yesh Din, there are a great many precedents of this kind.
If the army in Israel is above the law, then all of us should be ashamed to show our faces in the world. But if indeed the state demands of its army officers that they obey the laws of the land in carrying out their duty – and if they fail to do so, brings them to trial – then the state is also obliged to supply its officers with the required legal protection when they are abroad as well, and not to confine them to base.

The decision to leave the prime minister’s military aide, Maj. Gen. Yohanan Locker, at home last week – to avoid the risk that the officer might be arrested during Benjamin Netanyahu’s visit to London – was the climax of a prolonged national disgrace. Locker served as deputy commander of the Air Force during Operation Cast Lead and thus risked facing prosecution in Britain over allegations of war crimes. Like underground fighters during the Mandate, officers of the Israel Defense Forces have to act like escaped criminals for fear of the British.
David Cameron is the third British prime minister who has promised Israeli leaders he will bring about a change in the law that makes it possible for courts in the United Kingdom to issue arrest warrants against senior Israeli figures on suspicion of war crimes. But like his predecessors, Tony Blair and Gordon Brown, Cameron is wary of a confrontation with the backbenchers in Parliament over an unpopular issue such as assisting Israeli officers to avoid taking responsibility for their conduct toward the Palestinian people.
For five years now, Israeli governments have been trying to change the situation through pressure on 10 Downing Street. Meanwhile, senior officers no longer go for a year’s study or participate in seminars and study programs at the prestigious strategic research institutes in Britain. Even the previous IDF spokesman, Avi Benayahu, went to lecture in London under an assumed name.
The Israeli approach is mistaken from the start. The principle of universal jurisdiction, which makes it possible to prosecute people suspected of crimes against humanity in any place in the world, is not necessarily immoral, and the legal claims in its favor are not much different from those that justified legislating the law against bringing Nazi criminals to justice. In any case, Israel does not have the right to intervene in the affairs of another sovereign state and to demand that it change its laws.
The problem with the universal jurisdiction laws in Britain lies with the way in which they enable opponents of Israel to draw public and media attention and to pursue IDF officers, in particular, among all the representatives of the world’s nations that visit London. But the mockery of British law is a British problem. Israel is not supposed to fight against it through diplomatic pressure but rather by legal means.
The Military Advocate General, Maj. Gen. Avichai Mandelblit, has repeatedly said that the IDF knows how to examine itself and, when necessary, to put on trial and punish soldiers and officers that have committed crimes. And in all instances, the military judicial system is subordinate in every respect and issue to the Supreme Court, and every person – Israeli or foreigner – can petition the High Court of Justice against the army.
If this is the case, and on the face of it the latest remarks by Judge Richard Goldstone uphold this, there is no need to fear universal jurisdiction which is customary only against those whose countries do not investigate their deeds or bring them to trial.
What would go on trial in London, together with an IDF officer who commanded a controversial operation, would be the entire Israeli judicial system. Instead of the Foreign Ministry advising an officer to remain in Israel as if he has something to hide, the Israeli embassy must find itself a competent attorney who at any time could go out and demand the immediate cancelation of an arrest warrant against an officer or senior Israeli official. He will use just one argument: Anyone who feels that the IDF had committed a crime toward him has the right to turn to the Supreme Court in Jerusalem. Thanks to Israeli human rights organizations such as B’Tselem and Yesh Din, there are a great many precedents of this kind.
If the army in Israel is above the law, then all of us should be ashamed to show our faces in the world. But if indeed the state demands of its army officers that they obey the laws of the land in carrying out their duty – and if they fail to do so, brings them to trial – then the state is also obliged to supply its officers with the required legal protection when they are abroad as well, and not to confine them to base.

Human Rights Joint Committee – Eleventh Report
Legislative Scrutiny: Police Reform and Social Responsibility Bill

(http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/138/13802.htm)

Conclusions and recommendations

(b) International crimes and private prosecutions

13. There is nothing on the face of the Bill which requires the DPP to apply the higher prosecutorial test to his decision to consent. The proposed application of the test for prosecution by the DPP before he grants consent for an application for a warrant to proceed makes clear that the provision in Clause 154 marks a significant change to the current legal position (Paragraphs 1.62 and 1.64)

14. Taking measures which create a more limited opportunity for prosecution appears to be a retrograde step in connection with the international obligations which require these offences to be prosecuted. Before this change is to be approved, we recommend that the Minister should at least be required to show how the Government intends to illustrate its ongoing commitment to the public investigation and prosecution of these offences. It is of some concern that, while the DPP explained that the most positive step towards securing a successful prosecution would be to involve the CPS at an early stage, NGOs previously involved in these cases have doubted the capacity and resources of the CPS to assist. (Paragraph 1.71)

15. We recommend that if no further justification for the existing proposal is provided, the Bill be amended to substitute the requirement for the DPP to consent with a requirement for the applicants to notify the DPP of any application for an arrest warrant. (Paragraph 1.73)

16. In our view, any reform to the system of prosecution of these very grave offences should be carried out in the round, looking at the effectiveness of the UK system of prosecution in bringing those alleged to have committed international crimes to justice. (Paragraph 1.76)

17. In light of the seriousness of the offences concerned, we consider that any changes to the mechanics of prosecution of international crimes in the UK should be carefully considered with a view to improving the effectiveness of any prosecution. Consistency in approach may be key to the credibility of the UK in connection with its commitment to the prosecution of these grave offences. We recommend that the Government should provide Parliament with a further explanation why, in extending the role of the DPP in connection with arrests, it has not attempted to rationalise decisions more widely in connection with public prosecutions of these offences, including by examining the continuing involvement of the Attorney General and considering the resources and expertise open to the police and the DPP to ensure effective public investigation and prosecution of these offences where possible. (Paragraph 1.77)

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