Posted on 16 February 2011.
About LDFP and this Submission
1. The Liberal Democrat Friends of Palestine campaign for the Palestinians as a people and as individuals. We do this by urging that the rights of the Palestinians under international law must be upheld if peace is to be achieved, including the right of Palestinian victims to bring to justice the perpetrators of war crimes and crimes against humanity. Our commitment to international law is absolute, and presupposes the acceptance of the rights of all parties, including the legitimate rights of the State of Israel.
2. In this Submission, we argue that Clause 151 of the Bill should not be adopted by Parliament because its purpose is solely to indulge the policy of the State of Israel to maintain a culture of impunity for war crimes and crimes against humanity committed by its leaders and armed forces. If, however, the Clause is to be adopted we recommend the introduction of safeguards in respect of the matters which are detailed at the end of this Submission at paragraph 26. We also suggest at paragraphs 23 -24 a solution to one of the main concerns raised by those arguing for change.
The background to the proposal to change the law – Mrs Tzipi Livni
3. Mrs Tzipi Livni was Israeli foreign minister during the Israeli campaign in Gaza during late December 2008 and January 2009 known by its Israeli code name Operation Cast Lead. According to the respected Israeli Human Rights NGO B’Tselem, 1,385 Palestinians were killed in the operation. Of these, 762 did not take part in the conflict. This category included 318 minors under the age of 18.1
4. Mrs Livni is now leader of the opposition in the Israeli parliament, the Knesset, and not currently entitled to the privilege of sovereign immunity. On 12 December 2009, a warrant was issued for her arrest by District Judge Tim Workman in Westminster Magistrates Court in the belief that she was visiting the UK. The warrant concerned a universal jurisdiction offence or offences she was alleged to have committed in connection with Cast Lead. As far as we are aware, the particulars are not in the public domain. When she learned of the issue of the warrant, she cancelled her visit.
The campaign to change the law
5. The insertion of Clause 151 into the Bill is a direct consequence of a campaign mounted by Israel and various pro-Israel advocacy groups to change the law after the issue of the warrant to arrest Mrs Livni.
6. This campaign led to the widespread dissemination of a myth that accusations of war crimes and crimes against humanity against Israeli leaders and officials were, almost as though of necessity, the result of political motivations which had no place in a court of law. On 3 March 2010, Prime Minister Brown announced in The Daily Telegraph that Britain would amend the law to prevent individuals who are “motivated purely by political gesture” from seeking arrest warrants in war crimes cases.
7. He also asserted that the current legislation in force in England and Wales risks dissuading international leaders from visiting Britain, and said:
“There are sometimes people representing countries and interests with which the UK must engage if we are not only to defend our national interest but maintain and extend an influence for good across the globe. Britain cannot afford to have its standing in the world compromised for the sake of tolerating such gestures.”
8. There was, the then Prime Minister argued in his article, a need to bring “the risk of arrest” into “closer alignment with the risk of prosecution”, implying that the law needed reform.
9. Before the Election, both the Labour and the Conservative parties advocated a change to the law based broadly on these arguments, encouraging the myth that the arrest warrant against Mrs Livni was no more than political point scoring. Of the three main parties, only the Liberal Democrats held back. Nevertheless, since the Election the Deputy Prime Minister has advocated a change to the law in a speech to the Liberal Democrat Friends of Israel. His choice of words indicates, in the context of the Israeli pressure to change the law, that he had been advised that the warrant to arrest Mrs Livni had been procured for political purposes and issued by junior, perhaps even lay, magistrates:
“It is right that people suspected of [war] crimes should be held accountable by the courts. But the framers of the legislation never intended local magistrates to be able to issue politically motivated arrest warrants of [sic] people visiting the UK without reasonable grounds for doing so.”2
Israeli war crimes
10. Statements by various parties including Hamas officials that they welcome attempts to prosecute Israeli political and military figures are sometimes cited by those arguing for a change in the law as examples of political motivation behind attempts to secure an arrest. Yet no one has seriously suggested that such statements played a role in the decision to issue the warrant against Mrs Livni. Any such idea would be grotesque. The often repeated allegations that attempts to bring charges against Israeli war crimes suspects are “politically motivated”, and therefore without foundation in fact, are no more than hearsay. These allegations are an insult to the victims of those crimes, as well as an attack on the professionalism of the senior District Judge who issued the warrant.
11. What lies behind the campaign to change the law is a culture of denial: a deep-seated reluctance to face up to the reality of Israeli war crimes over the decades, and a refusal to accept that a senior Israeli politician might have a case to answer.
12. The highly respected Israeli historian Benny Morris has drawn attention to a truth which is unpalatable to many people in this country as well as to many Israelis, namely that Israel’s history of war crimes goes right back to the inception of the Israeli state and to the last months of the British Mandate:
“After the [1948-9] war, the Israelis tended to hail the ‘purity of arms’ of its militiamen and soldiers and to contrast this with Arab barbarism, which on occasion expressed itself in the mutilation of captured Jewish corpses. This reinforced the Israelis’ positive self-image and helped them ‘sell’ the new state abroad: it also demonized the enemy. In truth, however, the Jews committed far more atrocities than the Arabs and killed far more civilians and POWs in deliberate acts of brutality in the course of 1948…The Israelis’ collective memory of fighters characterized by ‘purity of arms’ is also undermined by the evidence of rapes committed in conquered towns and villages.”3
Operation Cast Lead and the Dahiya doctrine
13. Space does not permit a history of Israeli war crimes from then until now, so we now turn directly to Operation Cast Lead. There is no doubt that a number of acts carried out by the Israeli military during Cast Lead were war crimes. This can be seen, for example, from the evidence collected in the Report of the United Nations Fact-Finding Mission on the Gaza Conflict, commonly known as the Goldstone Mission, which made a preliminary investigation into war crimes by both Hamas and Israel. Israeli crimes included the deliberate targeting of such clearly non-military objectives as industrial infrastructure, food production, water installations, sewage treatment plants and housing. The Mission concluded that “there was a deliberate and systematic policy on the part of the Israeli armed forces to target industrial sites and water installations”4.
14. Equally relevant for our purposes are the fault element, the mens rea, behind such war crimes and the fact that Israel has used war crimes as an instrument of policy (“a legitimate means to achieve…political goals”). Both can be seen from the following observations by the Mission:
“The tactics used by the Israeli armed forces in the Gaza offensive are consistent with previous [Israeli] practices, most recently during the Lebanon war in 2006. A concept known as the Dahiya doctrine emerged then, involving the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations…
“…Statements by Israeli political and military leaders prior to and during the military operations in Gaza indicate that the Israeli military conception of what was necessary in a war with Hamas viewed disproportionate destruction and creating maximum disruption in the lives of many people as a legitimate means to achieve not only military but political goals.
“Statements by Israeli leaders to the effect that the destruction of civilian objects would be justified as a response to rocket attack (‘destroy 100 homes for every rocket fired’) indicate the possibility of resorting to reprisals.”5
15. The Mission also concluded:
“[T]he Mission considered whether the series of acts that deprive Palestinians in the Gaza Strip of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country , that limit their access to courts of law and effective remedies could amount to persecution, a crime against humanity. From the facts available to it, the Mission is of the view that some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed.”6
16. As Foreign Minister, Mrs Livni was a leading figure in the Israeli cabinet that prosecuted Operation Cast Lead. While military operations were continuing, she stated with apparent satisfaction on 13 January 2009:
“We have proven to Hamas that we have changed the equation. Israel is not a country on which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild – and this is a good thing”7
17. The Mission quoted her words and those of some other Israeli leaders then noted:
“It is in the context of comments such as these that the massive destruction of businesses, agricultural land, chicken farms and residential houses has to be understood….”8
18. As an aside, one is entitled to ask where the Northern Ireland Peace Process would be today if the British Government had adopted a similar attitude to that of the Israeli cabinet of which Mrs Livni was a member. For instance, the Army might have been ordered to use artillery to shell the Divis Flats, the Royal Navy ordered to blockade the coast of the Republic of Ireland, and the RAF ordered to bomb civilian targets in Dublin. The consequences just do not bear thinking about.
19. Suffice it to say for our purposes that the Mission does suggest the possible existence of prima facie evidence against Mrs Livni as a member of an Israeli cabinet that may have authorised war crimes or even crimes against humanity. Nevertheless, while highlighting this we feel bound to draw attention to the Mission’s general statement concerning its examination of the mental element in war crimes. This also sets out certain limitations it puts on its own conclusions:
“…In many cases [the Mission] has found that acts entailing individual criminal responsibility have been committed. In all of these cases the Mission has found that there is sufficient information to establish the objective elements of the crime in question. In almost all of the cases the Mission has also been able to determine whether or not it appears that the acts in question were done deliberately or recklessly or in the knowledge that the consequence that resulted would result in the ordinary course of events. The Mission has thus referred in many cases to the relevant fault element (mens rea). The Mission fully appreciates the importance of the presumption of innocence: the findings in the report do not subvert the operation of that principle. The findings do not attempt to identify the individuals responsible for the commission of offences nor do they pretend to reach the standard of proof applicable in criminal trials.”9
20. It is not for us to prejudge any case that may one day be brought against Mrs Livni in a court of competent jurisdiction. The point we are making is that, in the light of the above quotations from the Goldstone Report, it is ridiculous to assert that an investigation which might lead to the bringing of charges against her would be merely “politically motivated”.
21. The importance of universal jurisdiction for offences committed in connection with Cast Lead was highlighted by the Mission:
“In the context of the increasing unwillingness on the part of Israel to open criminal investigations that comply with international standards, the Mission supports the reliance on universal jurisdiction as an avenue for States to investigate violations of the grave breach provisions of the Geneva Conventions of 1949, prevent impunity and promote international accountability.”10
Not the time to accommodate Israel on this issue
22. We do not need to draw your attention to Israel’s refusal to freeze settlement activity, to accept that East Jerusalem is not Israeli sovereign territory, or to its general contempt for Palestinian rights. Until Israel accepts Palestinian rights in international law without equivocation, it cannot negotiate peace in good faith. What kind of message would it send if Britain now changes its law with the specific purpose that suspected Israeli war criminals can visit England and Wales without fear of arrest as a result of pressure from the Israeli government? If it is considered that there are good reasons for passing Clause 151, then it should be passed when Israel has concluded an overall peace agreement with the Palestinians, with Syria (whose land it has also occupied and purported to annex), and with the other Arab League States: an agreement which reflects the rights of all parties in international law. We therefore urge the committee to consider carefully the further diminution of British moral standing overseas which passing Clause 151 will inevitably entail.
Other points and possible amendments to Clause 151
23. In paragraphs 7 and 8 above we mention two other arguments which Prime Minister Brown advanced for a change in the law. The first is the need of British diplomacy to invite foreign leaders to this country without fear that they might be prosecuted. The second is the assertion that there should be a “closer alignment” between “the risk of arrest” and “the risk of prosecution”.
24. No legislation is required with regard to the first of these arguments. The UK could sign up to the 1969 UN Convention on Special Missions which would allow foreign governments to appoint members to delegations visiting the UK for specific purposes without fear that they would be prosecuted for universal jurisdiction offences. This would satisfy the requirements of diplomacy without the abhorrent spectacle of suspected war criminals coming here for lecture tours or even fund raising activities: something that would hardly be conducive to public order.
25. If there is indeed a need to “align” the risks of arrest and prosecution in the law of England and Wales, as Prime Minister Brown asserted, then what basis is there for establishing a change to the law applicable to universal jurisdiction offences and not to the law applicable to other offences? The right to seek an arrest warrant is an ancient Common Law right of the people of England and Wales. If there is really a need for amendment, then the amendment should apply to arrest warrants for all offences, not just some of them.
26. The purpose of the issue of an arrest warrant is to enable investigations to take place and to give the prosecuting authorities sufficient information to determine whether there is adequate evidence for a charge to be brought. If the DPP is to be involved in the procedure at an earlier stage, as Clause 151 contemplates, a number of issues need to be addressed:
- should a victim of a universal jurisdiction offence who applies for an arrest warrant go initially to the District Judge in Westminster or to the DPP? Clause 151 gives no guidance on this. This ambiguity could lead to the shuffling of responsibility from the District Judge to the DPP and vice versa, while the suspect takes the opportunity to flee the jurisdiction;
- Clause 151 as drafted will have the effect of putting the DPP in the anomalous position of supervising the District Judge in the exercise of a judicial function. This, surely, has serious constitutional implications;
- what test will the DPP apply in exercising consent?
- will adequate resources be made available to the DPP for the extra expense which his or her department will incur?
- what time frame will apply to the DPP’s work? It should be made clear that he or she must act in a timely fashion;
- what will be done to ensure that the DPP, who carries out his functions under the “superintendence” of the AG, will not be subject to political pressure?
27. If Clause 151 is to be retained, we urge that it should be amended to take account of the above considerations. A possible solution might be to require the District Judge to notify the DPP of the application for the warrant and to permit the DPP to attend and to make submissions at the hearing for the issue of the warrant, while leaving the judicial decision whether or not to issue the warrant to the District Judge.
1 http:// www.btselem.org/English/Press_Releases/20090909.asp
2 For full text, see http://www.thejc.com/news/uk-news/41002/nick-clegg-full-speech-lib-dem-friends-israel
3 Morris, 1948: A History of the First Arab-Israeli War, pp. 405-6.
4 Goldstone Report, para. 54.
5 Ibid., paras 62-4.
6 Ibid., para 75.
7 Ibid., para 1206.
8 Ibid., para 1297.
9 Ibid., para 25.
10 Ibid., para 127.
