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Professor Richard Falk on Universal Jurisdiction

January 28, 2014 at 2:41 am

The Middle East Monitor (MEMO) hosted UN Special Rapporteur Prof. Richard Falk for a series of events this week including a parliamentary briefing on the issue of Universal Jurisdiction. The following is an extract from the talk he delivered in the House of Commons:

The issue of universal jurisdiction is of special interest at this time because of the apparent effort to give assurances to Israeli leaders that they won’t be subject to a legal process if they come here (to the UK); and that of course is in reaction to the problems that the former Foreign Minister [Tzipi] Livni had when she cancelled her trip [to the UK last year].

I think it is important to realise that the whole idea of universal jurisdiction is to take account of the weakness of international institutions in upholding international criminal law. There has always been the sense that national judicial institutions reinforce the norms of international law and take account of that institutional vacuum that exists in international society; this has been a historical practice in relation to piracy and to other kinds of international crimes that were a threat to the international community as a whole. The idea of Nuremberg after World War Two was that crimes against the peace, crimes against humanity and war crimes are also offences against the whole of international society. There is an interest on the part of all states in trying to implement those norms of international criminal law. The American Chief Prosecutor at Nuremberg said the law the state applied to the German survivors of World War Two will not be respected unless those who sit in judgement uphold it in relation to their own behaviour; that it was a promise to the future.

It seems to me that if a country such as Britain, which has a proud constitutional tradition, reserves the implementation of international criminal law just for those the government doesn’t like at the time – in other words if international criminal law is used for prosecuting Saddam Hussein or Slobodan Milosevic but not the friends of the government – then you discredit, in a fundamental way, the rule of law which really does depend on equals being treated equally. If that is not done then double standards become very manifest; it also has the effect of saying that geopolitics and foreign policy always trump the law. Again, that is an unfortunate way of thinking in an increasingly globalised world where the discipline of international law is very important as a way of restraining and containing foreign policy within appropriate boundaries. I’ve said often that US foreign policy would be much more successful had the Americans chosen to respect international law in the last several decades; that most of the failures of American foreign policy have correlated with deviations from international legal norms. Hence, in that sense I think a lot is at stake with this whole idea of universal jurisdiction.

Putting it now in the Israel-Palestine context, universal jurisdiction is part of the struggle against impunity for the Israeli military and the country’s political leaders. That impunity has been possible both because Israel itself doesn’t impose accountability on those who perpetrate violations of international criminal law and because the US, and to some extent European countries, have given a geopolitical insulation to Israel in relation to its responsibilities as a sovereign state.

Thus, part of the wider stage of the conflict between Israel and Palestine is a shift in tactics on the Palestinian side much more in the direction of non-violent symbolic instruments of soft power. They include this much more robust global solidarity movement that has concentrated on building a boycott and divestment campaign which has been surprisingly effective, even in the United States. It has been increasingly a matter for university campuses, for instance, even at conservative universities. Part of this issue of impunity and accountability was also raised by the UN’s Goldstone report and by the international law panel appointed after the flotilla incident of May 31st;all of these issues converge to suggest that at this time the most effective way of implementing international law is both through the activism of civil society and through national legal institutions. One of the dimensions of the flotilla incident that is interesting and worth noticing is that Israel, for the first time, abandoned the claim that it was entitled to impose a comprehensive blockade. Everything the UN tried to do had had no effect, but this flotilla incident and the outrage associated with the way in which it was attacked led the Israeli leadership to say that henceforth humanitarian goods, fuel, food and medicine would be allowed to enter Gaza without restriction. Of course, even though Israel then “eased” the blockade it hasn’t ended it and the most recent statistics show that the blockade has actually been tightened in such a way that the people of Gaza get only about 28% of the goods that they were receiving prior to the blockade. So there is still very severe pressure on the Gazan population, which is forcing them to rely on some black market economy through the tunnels and which is generally an extension of the collective punishment of a whole population; that is a violation of Article 33 of the Geneva Convention that unconditionally prohibits collective punishment as an instrument of occupation.

Following the main text of his talk Prof. Falk and the MPs discussed a number of issues in addition to universal jurisdiction, including the issue of the illegal arrest of Palestinian children.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.