Significant questions have been raised about the independence of the judiciary from the UK government after the courts last week issued a warrant for former Israeli Foreign Minister Tzipi Livni for alleged war crimes during last year’s War on Gaza. At a time when the Chilcot Inquiry is in progress, this clash between legal and political forces gives an interesting insight into the government’s respect for the domestic legal system and its commitment to international justice.
A private prosecution was launched against Ms Livni at a London magistrates’ court, alleging crimes against the Geneva Conventions. To launch such a charge no evidential proof is needed. Once the charge is issued the police are required to arrest the defendant and bring them before a court, where the evidence will be reviewed and a decision made as to whether the prosecution should continue. All this action can currently be taken as the UK is one of a number of countries in which the jurisdiction of the courts can be used to prosecute genocide, crimes against humanity and war crimes. This is the concept of universal jurisdiction. It is most commonly associated with the arrest of Augusto Pinochet, the Chilean dictator, who was detained in London at the request of the Spanish courts. Pinochet was never put on trial in Europe, but it importantly set a precedent that universal jurisdiction could give enforceability to international law and was more than just an empty symbol of ‘Western progress’. Its application leading to a warrant for the arrest of Ms Livni has been described as a ‘peculiarity’ of the legal system by the government and readily labeled as an ‘embarrassment’, leading to calls for such action to ‘never be allowed again’. The government is now seeking to alter the manner in which universal jurisdiction can be applied in the UK. It is expected that the Attorney General, the government’s legal advisor who holds the power to halt the continuation of prosecutions (including those under the authority of universal jurisdiction), will be asked to approve warrants before suspected war criminals can be arrested in future.
Commenting on the incident, Tzipi Livni robustly declared, “what needs to be put on trial here is the abuse of the British legal system”. The Times denounced “the targeting of Israeli ministers by the courts” as “a disgrace” and “a politicised campaign to harass the statesmen of a democracy”. Undoubtedly, it was incorrect for the warrant to be issued without Ms Livni being present in the country, as this is a pre-requisite for application. All the same, her vociferous indignation does not exonerate the former Defence minister from the legitimate accusations that have been made against her (an independent UN fact-finding mission concluded that “actions amounting to war crimes and possibly, in some respects, crimes against humanity, were committed by the Israel Defense Force”). In keeping with its commitment to international justice, the British government’s response to the furore has been to consider permitting its legal advisor the authority to dismiss prosecutions without reviewing the evidence behind the claims. This decision could have huge implications for the independence of the judiciary. Politicians must stay out of individual cases, and not pass comment without good legal reason. It appears that the government is amending the law in order to dictate which prosecutions can go forward in future, their predominant motivation for doing so being to avoid further embarrassment. The Foreign Office has elucidated that Ms Livni could be a key player in a possible future peace process and that we must keep dialogue open. If Barack Obama’s presence and political capital could not shift Israel’s steadfast position it is unlikely that Britain will succeed, even if Ms Livni may be a more conducive partner for talks than Binyamin Netanyahu. Regardless, this does not absolve her of responsibility for her past actions, not to mention that the UN fact-finding mission called on the world to “end the culture of impunity” which haunts the Arab-Israeli conflict.
The moves made by the government should be condemned in the most unequivocal of terms. Were the government to apply the principle in the manner they are proposing, the continuation of prosecutions would be subject to fluctuations in foreign policy. Considering brutal dictators from Saddam Hussain, to Islam Karimov, have at times been thought suited to the national interest, it is difficult to see how this will lead to anything other than a disturbing pattern of inconsistency. It has been argued that a policy of non-intervention between states has brought a modicum of equality in international relations, but this is a false dichotomy, equality of inaction does not benefit our national interest, the UK should look to lead when it comes to human rights and seek equality between citizens, not leaders. It is notable that those who have criticised universal jurisdiction as infringing upon national sovereignty, whose position the UK is now moving towards, have served in governments responsible for deaths on the greatest of scale and are fully committed to the belief that their actions were justified. Henry Kissinger who oversaw millions of deaths in Vietnam has described it as a ‘tyranny of judges’, George W. Bush has warned against the dangers of the concept being used as a political tool, but, they forget that it is not the principle that discriminates, it is those in power who are selective when applying justice. Both arguments are easily refuted. First, the definition of war crimes used is largely similar to those in the Pentagon’s military manuals and on numerous occasions the U.S. has asserted its jurisdiction over others’ citizens to convict drug lords and terrorists. Second, legal systems which meet international standards (decided by the UN) have appropriate means to appeal against convictions, where as, the alternative Kissinger and Bush propose is simply a ‘tyranny of politicians’, who do not consider evidence, nor submit their decisions to independent review.
At a time when human rights are being breached with impunity around the globe, the government should reject this inauspicious approach to the rule of law and make the arguments for the values of fairness, equality and justice that are inherent to our democracy, not consider them an embarrassment. It should stand up to those who seek to bully and show callous disregard for international law, not allow a possible war criminal to hide behind her position as a ‘statesman of a democracy’. Universal jurisdiction should be held up as a pinnacle of our legal system, if only as a symbol of hope to those who live in the most desperate of circumstances, that British justice holds their common humanity as its own.
This was first posted on Freedom in a Puritan Age