Adri Nieuwhof and Ziyaad Lunat | Electronic Intifada | 18 December 2009
Efforts by human rights organizations, lawyers and activists in Palestine and Europe to hold Israeli war crimes suspects to account have gained momentum over the past few years. Last week, former Israeli Foreign Minister Tzipi Livni cancelled a visit to the UK over threats of a lawsuit under the country’s universal jurisdiction laws. The Goldstone report on the UN Fact Finding Mission on the Gaza Conflict, published in September, favors universal jurisdiction as a tool for enforcing international law, preventing impunity and promoting international accountability.
The purpose of universal jurisdiction is to hold accountable in third-party states individuals suspected of war crimes from states that do not fulfill their obligations under international humanitarian law. The events of World War II showed the horrific consequences of the absence of the protection of civilians, leading to the adoption of the Fourth Geneva Convention in 1949 dealing with the laws of armed conflict. State signatories to the Convention are obliged to enforce and ensure the respect of international humanitarian law, or the law of armed conflict.
The authoritative commentary on the Fourth Geneva Convention, published by the International Committee of the Red Cross (ICRC), confirms that countries have an obligation to actively search for suspected war criminals. It follows that this duty should include maintaining border controls that enable a state to ensure that known suspects seeking to enter the jurisdiction are arrested upon arrival. The Goldstone report concluded that there was strong enough evidence that Israel committed war crimes and crimes against humanity in the Gaza Strip. Therefore, the 194 states that signed the Geneva Conventions carry the responsibility to actively search for suspected war criminals and bring them before its courts.
Meanwhile, Israel makes no serious efforts to hold war crimes suspects to account in its own courts. Prime Minister Benjamin Netanyahu responded to the Goldstone report in the Israeli parliament on 12 October by vowing never to allow Israeli leaders or soldiers to stand trial on war crimes charges for their military actions in the Gaza Strip. At the United Nations level, the US routinely vetoes any efforts to hold Israel accountable, leaving universal jurisdiction as one of the few avenues Palestinians have towards justice.
The warrant for the arrest of Tzipi Livni is not the first time universal jurisdiction has been used in an attempt to try Israeli war crimes suspects — before last winter’s attacks on Gaza; several suspects were already facing warrants. In September 2005, the evidence of Doron Almog’s involvement in the destruction of 59 homes in Rafah in the Gaza Strip in January 2002 persuaded a district judge in London to grant a warrant for his arrest. However, Almog was tipped off before leaving the plane at Heathrow airport and did not leave the El Al aircraft that brought him to the UK. Former Israeli intelligence head Ami Ayalon faced an arrest warrant in the Netherlands following a complaint by a Palestinian who said Ayalon was involved in his torture. However, the Dutch authorities colluded with Israel to undermine the effort to prosecute. And in December 2007, Avi Dichter, then public security minister and head of the Shin Bet intelligence agency, cancelled a trip to the UK for a security conference at King’s College London because of his involvement in the bombing of a house in Gaza that killed Hamas leader Salah Shehadeh and many members of his family.
In October, lawyers in the UK called for the arrest of Israeli Defense Minister Ehud Barak for his role in the Gaza attacks earlier this year. The British Foreign Office intervened, accepting Barak’s claim of diplomatic immunity through a fringe meeting with the Labor party. The event might have had a deterrent effect on Israeli Strategic Affairs Minister Moshe Ya’alon, who turned down an invitation for an event with the Jewish National Fund in London after warnings he might face arrest. He has since announced his intention to “forego visits to European capitals.” Livni was also asked to address the same Jewish National Fund event before canceling her visit. However, third-party states with universal jurisdiction laws have frustrated efforts to bring Israeli war crimes suspects to their national courts.
In an affront to the independence of the British judiciary, Foreign Secretary David Miliband promised Israel a legal fix to guarantee immunity for Israeli officers. Upon Netanyahu’s appeal for a “world-wide campaign” to lobby for changes in the international laws of war, Spain enacted a bill last month to limit the reach of its universal jurisdiction laws. This move was a response to Israeli pressure following the opening of a war crimes probe against Israeli officers in Spanish courts. This is despite the UK and Spain’s cooperation in the application of universal jurisdiction in the case of Chilean dictator Augusto Pinochet a decade ago. Miliband’s intent to change the law to appease Israel would be a setback not only for Palestine but for all other cases around the world deserving a fair hearing.
After World War II, many countries fulfilled their duties to try in courts suspects of war crimes and crimes against humanity. The principles of universal jurisdiction, a direct result of a renewed sense of duty to humanity and to universal justice following the horrors of the Holocaust, made this possible. Israel is now leading the efforts to revoke these laws while governments continue to fuel Israeli exceptionalism. The arrest warrant against Livni signifies a modest breakthrough in the efforts of activists worldwide towards the realization of justice long denied to the Palestinian people.