Tuesday, December 15, 2009

British Warrant Against Israel's Livni

According to the Guardian, a British magistrate nearly issued an arrest warrant for Tzipi Livni, Israel's former foreign minister, over alleged war crimes committed in Gaza during Operation Cast Lead. From the Guardian report:
Westminster magistrates' court issued the warrant at the request of lawyers acting for some of the Palestinian victims of the fighting but it was later dropped.

The warrant marks the first time an Israeli minister or former minister has faced arrest in the UK and is evidence of a growing effort to pursue war crimes allegations under "universal jurisidiction". Israel rejects these efforts as politically motivated, saying it acted in self-defence against Hamas rocket attacks from Gaza.
It is the second time in less than three months that lawyers have gone to Westminster magistrates court asking for a warrant for the arrest of an Israeli politician. In September the court was asked to issue one for the arrest of Ehud Barak, Israel's defence minister, under the 1988 Criminal Justice Act, which gives courts in England and Wales universal jurisdiction in war crimes cases."

Barak supposedly escaped because the court ruled that he had immunity under the State Immunity Act, 1978.
Given the smoke and mirrors nature of foreign relations, the facts in l'affaire Livni are murky. The Guardian report notes:
A statement issued by HM Court Service implied that there had been no application for an arrest warrant, stating "there is no record of any such hearing". A spokeswoman maintained that this was not a misleading statement.

While some deception might be tolerable from foreign ministry officials, ought we to expect better from courts?
Despite there being "no record of any such hearing," it is clear that there were many red faces after whatever it was that transpired in court. The Times is reporting that the Israeli Foreign Ministry has (predictably) reacted with anger: "We reject the court's cynical legal move against Opposition Chairwoman Tzipi Livni, which was initiated by radical elements ... Israel calls on the British government to fulfill, once and for all, its promises and prevent an abuse of the British legal system against Israel and its citizens by anti-Israel elements."

The Lede blog quotes a statement from Prime Minister Benjamin Netanyahu:

We will not accept a situation in which Ehud Olmert, Ehud Barak and Tzipi Livni will be summoned to the defendants’ chair. ...We will not agree to have Israel Defense Forces soldiers, who defended the citizens of Israel bravely and ethically against a cruel and criminal enemy, be recognized as war criminals. We completely reject this absurdity taking place in Britain.

Here's more from The Lede: "[according to ] The Jewish Chronicle, legal experts in Israel “have advised cabinet ministers with a security background and senior IDF officers not to visit Britain, Spain, Belgium or Norway, while lawyers in these countries are seeking to arrest Israelis on charges of alleged war crimes through ‘universal jurisdiction’ laws.”"

The use of universal jurisdiction is growing and finally beginning to bite. Spain has been at the forefront of this expansion. Other countries like Italy have followed. As Time magazine reported some years ago, several members of the Bush administration are at risk in EU countries for abuses at Abu Ghraib and Gitmo. This is just one example of an increasingly decentralized use of international law instruments by activists. At a minimum, it prevents leaders from traveling freely and shames them. Deployed correctly, it offers the prospect of bringing the perpetrators of horrible crimes against innocent people to justice outside their own states. However, the political deployment of universal jurisdiction by activists against those who take tough, but internationally unpopular, actions threatens to undermine its efficacy and existence. This has been recognized at the UN level and a meeting in October 2009 discussed this topic without offering much by way of clarity.

One thing is clear: If more warrants are issued against foreign leaders, states will clamp down on universal jurisdiction. If British courts start acting against Israelis, what is to stop Spanish courts from acting against controversial British leaders like Tony Blair? This fear is at the root of the considerable revulsion against universal jurisdcition in political circles in many states. Ultimately, self-interested actions by political elites will ensure that Livni and her counterparts can come shopping in London without fear.