Putting the Independence of the British Judiciary to the Test

In December last year, Westminster Magistrates’ Court issued an arrest warrant for Israel’s former Foreign Minister, Tzipi Livni, under Britain’s universal jurisdiction laws. It was granted in the wake of evidence found by the United Nations fact-finding mission on the conflict in Gaza which concluded that both Israeli forces and Palestinians had committed acts that amount to war crimes and possible crimes against humanity. The mission also concluded that Israeli military planners followed a doctrine aimed deliberately at causing massive damage, destruction and suffering to civilian populations and in addition, that grave breaches of the Fourth Geneva Convention in respect of wilful killings by Israeli Occupation Forces (IOF) gave rise to individual criminal responsibility.

The warrant was later withdrawn when Livni was forced to cancel her trip to Britain, but not before sparking a diplomatic fracas. Israeli indignation and outrage coupled with the full impact of the infamous Israel Lobby was brought to bear on the government as demands were made to change the law. In response, Britain’s Foreign Secretary, David Miliband, promised to ‘fix’ the law so as to guarantee immunity to Israeli officials. The government has now moved to review and restrict magistrates’ powers – a measure that is condemned fiercely, by politicians and human rights lawyers alike, as an affront to the independence of the British judiciary.

Earlier this week, in an interview with the Jewish Chronicle, Livni announced quite brazenly her provocative intention to attempt another trip to the UK in order to “test” the British “process for the issuing of arrest warrants for alleged war crimes”. In reference to the outrageous situation whereby Britain is being pressured to change its laws to suit foreign dictates, Livni was of the opinion that “the British know that they have to do so”.

The proposed amendments to current legislation on universal jurisdiction have been delayed pending a decision from Prime Minister Gordon Brown. However, Justice Minister Jack Straw who appears to have serious reservations about changing the law has come under direct attack. He is being accused of frustrating the process intentionally, despite the known concerns of the Justice Ministry that the usual process of consultation on legislation has not been followed. It is still unclear what the government intends to do.

As the parliamentary election deadline looms and there is talk of a backbench rebellion, pressure on the government to act quickly is being intensified. There are growing fears among pro-Israel groups that the government will not act in time to get the legislation through parliament before the next general election, which has to be held by May this year, at the latest.

Universal jurisdiction allows any UK magistrate, once provided with prima facie evidence, to issue an arrest warrant for any individual accused of international crimes committed anywhere in the world, should they enter Britain. Its premise is that Britain will not be a place of refuge or welcome for anyone responsible for committing crimes against humanity. It was used in Britain against Chile’s General Augusto Pinochet and in other European countries it has been used to prosecute war criminals from Rwanda and the former Yugoslavia.

Nevertheless, those who are convinced that the law must change contend that its scope is too broad, that it is arrogant and that its use has been hijacked for political purposes. It has been argued that since 2004, the four warrants issued under universal jurisdiction laws have all been for Israelis accused of serious crimes and, as a result, it has fallen into disrepute. This is, of course, a very convenient argument when you are standing on the wrong side of the law. However, it is logical to assume that in that particular period only alleged war criminals from Israel have actually had the gall – or chutzpah, as they would say – to consider travelling to Britain. Who knows, perhaps the next time a high profile member of Hamas flies into Heathrow, a warrant will be issued for his arrest as well. The law should apply to everybody, or nobody. That is one of the principles of English Law – everyone is equal before the law, and it should be applied equally.

The Goldstone Report recommended the UN Security Council to call on Israel and the relevant Palestinian authorities to conduct committee-monitored, independent investigations into the alleged crimes in conformity with international standards and to report back on these. It also recommended that the situation be referred to the International Criminal Court should they fail to comply.

Unless Israel carries out such an investigation or allows external bodies to do so, the problems being faced by Livni and other Israeli officials under suspicion are unlikely to simply go away. This has been acknowledged by elements within the Israeli administration and concrete, transparent action needs to be taken. Rather than the tantrums being thrown by pro-Israel groups – and their ridiculous name-calling as they seek to get our laws changed, perhaps they should be expending some of their time and energy on getting Israel to carry out the investigations required by Goldstone. At least Israel could then regain some of its international credibility.

Contrary to Tzipi Livni’s assertion that it is the right of every Israeli to travel freely to Britain, should she attempt to do so before the legal matter has been resolved it will be at her own risk. However, given that she has provided no specifics about her intended travel plans, it is most likely simply another tactic to put pressure on the British government. Moreover, judging by the resolve shown by the international community to prosecute Sudan’s Omar Bashir, if I was Ms. Livni, I wouldn’t want to call anyone’s bluff.