Yesterday, 7th December 2009, the Middle East Monitor (MEMO) hosted a groundbreaking event which brought together people from a wide variety of backgrounds and professions including academics, lawyers, peace activists, an MP and many others, all of whom were united by a common interest, to see justice served on behalf of the Palestinian people. The seminar, entitled “Universal Jurisdiction Against Israeli War Criminals” was fortunate enough to be supported by an impressive panel of speakers each of whom brought their own expertise to the table. The event was chaired by Sarah McSherry, Partner at Christian Khan Solicitors and member of Lawyers for Palestinian Human Rights.
The keynote address was read out by Dr Daud Abdullah, the Director of MEMO, on behalf of John Duggard, Chair of the Independent Fact-Finding Committee on Gaza and former UN Special Rapporteur to the UN Commission on Human Rights in the Occupied Palestinian Territories. The essence of his address was to highlight the importance of implementing universal jurisdiction against Israeli war criminals.
He pointed to a number of independent reports, including the Goldstone Report and reports by Amnesty International and Human Rights Watch, among many others, to have independently concluded that Israel has committed war crimes and crimes against humanity. He declared that those who oppose the findings of such reports, such as the American government and several European states, had either not read the reports or have worryingly “decided that Israel is above the law.”
He explained that the International Criminal Court (ICC) Prosecutor, Luis Ocampo, is currently considering whether or not to begin proceedings in which the crimes committed during operation Cast Lead last year will be investigated. His decision will rest, in part, on whether or not he considers Palestine to qualify as a “state”; a qualification that Duggard feel is met in the case of Palestine.
Furthermore, he explained that while Israel itself may not be a signatory to the ICC Statute, many of the soldiers who took part in the military operations last year are dual nationals. Some are Israeli-Canadian, Israeli-French, Israeli-British and so on and those individuals can technically be prosecuted by the second state to which they partly belong and who are parties to the Statute. If, however, even these states are unwilling to prosecute their nationals then the ICC Prosecutor may initiate proceedings himself.
Duggard described an attempt earlier this year to prosecute a senior South African-Israeli IDF officer, one of 75 South Africans to have taken part in the Gaza Offensive. In this case however, the Prosecution Authority failed to respond in time and David Benjamin managed to avoid arrest and escape justice.
Duggard then briefly outlined some of the difficulties involved in implementing universal jurisdiction in practice, especially against a country such as Israel who many jurisdictions, particularly in the West, tend to see “as a normal democratic state that should be allowed to handle such matters itself without interference from foreign courts.” Duggard’s address ended with the entreaty that the crimes that took place in Gaza in 2008-9 must be investigated and prosecuted. “If this does not happen the credibility of international criminal justice will suffer… one cannot expect action from the UN or EU. The responsibility is therefore on the courts – the ICC and national courts – to ensure that justice is done. The intent of securing justice should therefore concentrate their efforts on such courts.”
Duggard’s address set the tone and established the key focus for the rest of the seminar; The universal jurisdiction of Israeli war criminals and the roles of individual member states in seeing those criminals brought to justice.
Victon Kattan, teaching fellow in the Centre for International Studies and Diplomacy in SOAS, pointed out that while numerous reports and inquiries have looked into the issue of the violations of humanitarian and international human rights laws during Israel’s 22 day assault on Gaza a year ago, most have “overlooked the preliminary question as to whether the conflict was lawful to begin with.” He also read from a letter published in the Sunday Times by two dozen lawyers in January 09 in which they “categorically reject” Israel’s claim that self-defence was a justification for their atrocities during Operation Cast Lead.
The letter stated in part that “rocket attacks, deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence. Under international law self-defence is an act of last resort and is subject to the customary rules of proportionality and necessity.”
He examined Israel’s arguments that the operation was one of self-defence and therefore legitimate right under Article 51 of the UN Charter. As Victor points out, we have to examine what constitutes “self-defence”. Would one bullet fired across a border, for example, justify starting a war on the grounds of self defence? Were the rockets fired by Hamas of the scale or gravity that would justify such a dramatic and deadly response. Was Israel’s response proportionate? No.
Victor then pointed to the near universal consensus that Gaza remains an “occupied territory”, despite Israel’s refutation of this claim. This is because Israel still controls its airspace, entry and exit points, trade capabilities, economic markets and so on… This then led on to a discussion on Belligerent Occupation and the question of Israeli Aggression.
Haytham Mana’a, of the Arab Human Rights Commission and co-ordinator of the International Coalition Against War Crimes, discussed the purpose of Universal Jurisdiction in fairly academic terms, including where and how it applies. He highlighted some of its political obstacles including the influence of a very strong pro-Israel lobby as well as some of its juridical obstacles.
He pointed out that in the case of Palestine there is very strong juridical support for war crime prosecution including “more than 62 excellent reports, more than 26 fact-finding missions” the tireless effort of Palestinain NGOs and of course the “Goldstone report as a roadmap for a global legal campaign against Israel including lawsuits by individual states”; all of which pave the way for the urgently needed implementation of Universal Jurisdication in the case of Israel.
Daniel is a partner at Hickman and Rose Solicitors and co-founder of Lawyers for Palestinian Human Rights.
In his talk, Daniel emphasised the importance of holding to account those responsible for War Crimes; those in authority and those who carry out the crimes themselves. He said that he was not naïve and acknowledged that the task is formidable. However, it is a vital task particularly in the case of a country such as Israel whose conduct demonstrates not only war crimes but also crimes against humanity because of the systematic and widespread nature of the violations.
He recalled the failed attempt to have the Israeli General Almog arrested and pointed out that when the application was sought there was resistance not only in the judiciary but also among the police despite all the legal procedures that had been followed. Nevertheless, he called upon all of the related agencies to carry out their international and legal obligations. Daniel called on the police to show professional pride in their jobs and said that lawyers faced a huge task in just taking on the politics of the situation.
Daniel said that the starting point is one of recognising international obligations and that the prosecution of war crimes is an unqualified duty.
However, he pointed to an unfortunate pattern whereby it appears that somehow universal jurisdiction only seems to be applicable in the case of African leaders – it somehow seems easier to pursue them. If Israeli officials were resident on a long term basis in the West perhaps it would be easier but because they often pass through European capitals it is more difficult to secure their arrests.
There are complicated international interests and relations that impede universal jurisdiction. It is much easier to pursue on a domestic level.
Paul Troop, Barrister at Tooks Chambers, pointed to the riddle that, while War Crimes are apparently the most serious of all crimes it is possible to commit, they are rarely prosecuted and, when they are, attempts made are often ineffective and meet a whole host of opposition and resistance. Among the trends he noticed were the fact that:
- “Countries seem unwilling to punish their own citizens for suspected breaches of international criminal law.”
- “Suspects from more influential countries are less likely to be prosecuted than suspects from less influential countries. Eg compare prosecutions by suspects from the former Yugoslavia, African continent and Afghanistan to prosecutions of US, UK and Israeli suspects.”
- “Countries are more willing to exercise universal jurisdiction over suspects who have settled or are resident within their jurisdiction rather than suspects who are merely present or passing through their jurisdiction. Eg, R v Zardad (Central Criminal Court).”
- “Domestic authorities can be resistant to enforcing universal jurisdiction. Eg, the police’s failure to board the aeroplane and execute the warrant of the suspect in Almog.”
He discussed several possible reasons for these trends including the widely held belief that prosecuting soldiers is bad for morale etc.. but said that none were good enough to explain the situation entirely.
Michel Abdul Messih QC.
Michel Abdul Messih, Barrister at Tooks Chambers, said that the prosecution of war criminals is an essential component and step toward peace, for without justice the goal of peace can not be achieved.
He said that it is important not to stop at the level of the foot soldiers but that the pursuit of accountability and justice should involve those who give the orders – those who plan and order the operations. He also made the point that politics should be divorced from the legal processes.
Michel said that the attack on Judge Goldstone was incredible and appalling. That a man of such professional stature and repute should be so reviled is incredible and that we should all do our best to support him.
He pointed to the fact that there was public disgust with the inability to implement the law where Israel is concerned.
Mr Endresen was one of a group of vistors from Norway. He told us that a group of six lawyers had filed a complaint representing 20-40 individuals, mostly living in Gaza, against Israel. A few weeks ago however, their compliant was rejected by the Prosecutor of Norway. She accepted that she had jurisdiction over the matter but said that she did not “have to” prosecute and therefore she was choosing not to. The lawyers have written a complaint about her decision which will be submitted within the next three weeks.
Their aim, now that she has admitted that she does have jurisdiction, will be to show that she now has a “duty” to prosecute. The point was then made by Sarah McSherry that the Prosecutor has stated that her reason for not pursuing the case further was down to a lack of resources. However, as Mr Endresen said, if Norway as one of the richest countries in the world’s does not pursue these cases due to a lack of resources, then who else will?
In his speech Tayab Ali, (Solicitor Advocate, Partner, Specialist Cases Unit), spoke of his successful track record in seeking justice for British victims who had been tortured in Pakistan. He compared his experience in dealing with his past cases and his dealings with the case against Israel now where he and his like-minded colleagues currently find themselves up against the Israel Lobby. He pointed out that more British MPs have visited Israel than have visited African and Asian countries combined and that this is something that needs to be countered.
Tayab also took the opportunity to launch an organisation called “Clear Conscience” which is a group bringing lawyers together who defend civil liberties in the UK. It is not a law firm but a group in which to share ideas. He explained that Israel apparently has a one million dollar fund ready and waiting to be used and that Clear Conscience will therefore be up against a formidable and well resourced opponent.
He enumerated the objects of Clear Conscience:
- Clear Conscience will further and protect the rights of individuals and groups who are the victims of war crimes, crimes against humanity and breaches of international law.
- Clear Conscience will commission lawyers to prosecute those who are suspected of war crimes, crimes against humanity and breaches of international law.
- Clear Conscience will research, investigate and report on such crimes and breaches.
- Clear Conscience will utilise all lawful means to ensure governments are aware of their obligations under international law and lobby for the effective use of principles of Universal Jurisdiction within domestic courts anywhere in the world.
- Clear Conscience will undertake any action necessary to fulfill the above objects.
The launch of this new initiative rounded off the evening followed by a short question and answer session. The event was the perfect opportunity to bring together some great legal minds and establish connections for future co-operation regarding the ongoing pursuit of Universal Jurisdiction against Israeli War Criminals.