“The EU is a close partner of Israel and although we condemn its illegal occupation of Palestinian land we should be able to expect more courteous treatment.

“But Israel respects strength and the EU shows none.  So long as we refuse to back up our words of condemnation with any sanctions we must expect to be treated with disregard and contempt.”

Also: see this download giving examples (from 2008 and 2009) of demonstrating Israel’s refusal even to respond to EU enquiries).

share using:

Each year approx. 700 Palestinian children from the occupied West Bank are prosecuted in Israeli military courts.

They are frequently arrested by heavily armed soldiers in the middle of the night, tied painfully, blindfolded and taken to an interrogation centre in a military vehicle.

It is rare for parents to be told the reason for the arrest or where their child is being taken.

The child is interrogated in the absence of a lawyer or family member and not informed of their right to silence.

Children are frequently threatened and physically assaulted during interrogation.

Following interrogation children as young as twelve appear before a military court. They come into court wearing leg irons and brown prison uniforms. Handcuffs are usually removed before the court but replaced when they exit.

Testimonies were taken from 45 children aged 11 to 17 years who were arrested between 1st January and 30th June 2011, of these:

• 28 were accused of throwing stones
• 13 signed statements in Hebrew which they could not read
• 39 suffered physical violence
• 41 were blindfolded
• 4 were put in solitary confinement
• Palestinian children prosecuted by the Israeli military courts are currently receiving prison sentences of between two weeks and ten months for throwing stones.

After that, David blindfolded me and ordered me to kneel down. He immediately slapped me hard across the face. The huge man came from behind, grabbed my ties and lifted me up and I felt a sharp and terrible pain. He also put his foot on the ties and pressed down so hard that made me scream more. To shut me up he gagged me while David was standing there watching. “Confess so we can spare you the pressure,” David said. “I’ll give you 15 minutes to think,” he added. “I have nothing to confess to,” I said immediately and he went crazy and started screaming. He started slapping me and kicking me. He even grabbed my head and slammed it against the metal wall of the room where we were. My forehead swelled and I felt my hands bleeding because of the pressure.’

share using:

Why the British Government should recognise the independent State of Palestine and its Territorial Integrity

A Caabu Briefing Paper by John McHugo

1. Introduction

1.1 The Oslo Accords which were intended to lead to peace between Israelis and Palestinians were signed as long ago as 1993. Yet today what is still called the “peace process” is leading nowhere. Over the years Palestinian negotiators have offered many concessions, but were only asked to make more. The fundamental problem is that Israel, by far the stronger party, has always insisted that the Palestinians recognise its rights while refusing to concede the rights of the Palestinians themselves. How could negotiations ever succeed in such circumstances, when one party will not acknowledge the other’s lawful entitlements?

1.2 President Abbas has therefore embarked on a new initiative. He has called on the international community to recognise Palestine as a sovereign State based on the pre-1967 lines, and will take his country’s case to the UN in September and apply for membership. His intention is at long last to put the parties on a footing of equality. What this means in practical terms is that the Palestinians will be able to ensure that their legal rights, alongside those of Israel, will be taken as the starting point for peace negotiations.

1.3 This paper explains why President Abbas is entitled to take this initiative and calls on the British government to respond positively to it.

2. The Principle of Self-determination

2.1 The Palestinian population of the West Bank (including East Jerusalem) and the Gaza Strip which were occupied by Israel in 1967 (“the Occupied Palestinian Territory”, or “OPT”) have the right of self-determination in international law. Israel is under an obligation to respect this right. It has also been endorsed unanimously by the International Court of Justice.

2.2 The International Court of Justice has declared that self-determination is “one of the essential principles of contemporary international law” and its promotion is one of the founding purposes of the United Nations. Where this principle applies to a duly qualified people in respect of identifiable territory (as it does in the case of the OPT and its indigenous Palestinian population), this right precludes any competing claim to that territory by any other State or entity. All member States of the UN have a duty to respect and promote the realisation of the right of self-determination. It entitles a people “to determine their political status and freely pursue their economic, social and cultural development”.

2.3 The establishment of an independent, sovereign State is one of the possible political outcomes of a process of self-determination. By seeking recognition of its Statehood, the indigenous Palestinian population of the West Bank (including East Jerusalem) and the Gaza Strip therefore seek no more than support for their legal right of self-determination, which all States have a duty to promote. 3

3. The Principle of the Inadmissibility of the Acquisition of Territory by War

3.1 Another key rule of international law since the adoption of the UN Charter in 1945 is the prohibition of the use of force in international relations. One of the consequences of this is the inadmissibility of the acquisition of sovereignty over territory through armed conflict or belligerent occupation. Like self-determination, this is a rule from which States are not allowed to exempt themselves, as it is an obligation which all States owe to the international community as a whole. Any territorial acquisition which results from the threat or use of force is illegal. Therefore, an occupying power may not annex territory it has occupied, either in whole or in part. No State may use force or the threat of force to extract territorial concessions; any resulting treaty concluded in such circumstances would be void.

4. The Territory of Israel and Palestine

4.1 The maximum possible extent of the sovereign territory of the State of Israel in international law is therefore those parts of the former Mandate of Palestine which were already in its possession before the 1967 war. The principle of the self-determination of the indigenous Palestinian population applies to the other areas of the territory of the former Mandate (i.e. the OPT), and prevents any annexation by Israel. A Palestinian State is entitled to sovereignty over all these areas. Although Israel has asserted that it has sovereignty over an arbitrarily defined district which includes the Old City of Jerusalem and much surrounding territory as part of its “eternal and indivisible capital”, there is no legal foundation to this claim. Throughout its 44 years of occupation, Israel has not attempted to annex any other parts of the OPT, even those areas where it has built its illegal settlements. This provides grounds to believe that, despite its habit of referring to the OPT as “the disputed territories”, Israel knows full well that it may not claim sovereignty over such territory.

5. Palestine already exists as a sovereign State and is entitled to Recognition and Membership of the United Nations

5.1 Article 1 of the 1933 Montevideo Convention defines the requirements of statehood under international law:

“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with other states”.

5.2 When Palestine first proclaimed its independence as a sovereign State in 1988 it did not fulfil these requirements, but it does so today. It has a defined territory, namely the OPT, over which the indigenous Palestinian people have the right to exercise self-determination by establishing their State. This cannot be contested by any other State. 4

5.3 The Palestine National Authority was established pursuant to the Oslo Accords in 1993, and has been the foundation stone for building the institutions of the government of the sovereign Palestinian State in the OPT.

5.4 Palestine already has relations with other States. It is currently recognised by at least 118 member States of the UN – many more than the 76 which recognise Kosovo. Britain has already recognised Kosovo, even though most UN members still consider its entire claimed territory to be Serbian sovereign territory. By contrast, not a single other State recognises any part of the OPT as Israeli sovereign territory. There is no reason why Britain cannot also recognise Palestine if it has the political will to do so.

5.5 Israel is a sovereign State and member of the United Nations. Its independence and admission to the UN came about as a result of it satisfying the requirements of Article 1 of the Montevideo Convention. This was in the teeth of Palestinian opposition and did not result from negotiations with representatives of the Palestinian people. Today, when Palestine also fulfils the requirements of Article 1, there is no reason why Israeli opposition should be allowed to delay British recognition of Palestine or Palestine’s admission to the UN.

5.6 It is important to stress the necessity of coupling the recognition of the State of Palestine with recognition of its territorial integrity. To fail to recognise Palestine’s territorial entitlement at the time of recognition would raise the spectre of the Bantustans during the Apartheid era in South Africa. The Apartheid regime attempted unsuccessfully to pass these Bantustans off as sovereign States and to persuade the international community to recognise them as such. Something similar must on no account be allowed to happen when recognising Palestine. Furthermore, if Palestine did not have its eastern frontier on the Jordan and enjoy the status of a riparian State, or have its sovereignty recognised over the territory of the West Bank under which lie important aquifers, it would be deprived of major elements of its water rights.

5.7 Recognition of the State of Palestine by the international community and the entry of Palestine to the UN are vital to establish “equality of esteem” between Israel and Palestine. If Palestine is accepted as a member of the UN, with sovereignty over the entire OPT, parity will at last be established between the parties. Having both parties subject to the obligations which arise from UN membership should facilitate negotiations which lead to a permanent peace and deal with other issues such as the status of Jerusalem and Holy Places, and the rights of refugees.

6. The Benefits for Israel in international Recognition of Palestine and its Admission to the UN.

6.1 Israel will benefit from the international recognition of the State of Palestine based on the pre-1967 lines and its admission to the UN. Because Palestine only claims the OPT as its 5

sovereign territory, once Palestine is admitted to the UN on this basis it will be impossible for any future government of the Palestinian State – of whatever political hue- to extend its territory unilaterally by bringing claims to land on the Israeli side of these lines. It will have waived any right to do so. It will likewise be impossible for any future Palestinian government to refuse to accept the existence of Israel as a sovereign State within them.

6.2 This will balance Israel’s inability to bring a claim against Palestine for territory on the other side of these lines. Israel will have undisputed title to all the territory on the Israeli side of them, including that territory which was not allocated to the Jewish State under the 1947 UN Partition Plan but which Israel conquered during the period 1948-9, at a time when conquest could no longer be the basis of legal title.

6.3 Entry of the State of Palestine to the UN will also enable the two States to agree whatever territorial swaps they freely choose in their negotiations for a permanent peace. They are both entitled to “secure and recognised boundaries”. Although this does not necessarily presuppose territorial swaps – since all boundaries everywhere in the world between peaceful States are “secure and recognised” as a matter of course – the pre-1967 lines only reflected the cease-fire agreements of 1949. It may well suit the parties to modify them.

6.4 At the moment, Israel is using its military might and position as a belligerent occupant illegally to force concessions out of the Palestinians. This proves that, to date, Israel has not been in good faith in the negotiations it has conducted over territorial issues. Moreover, a settlement which is not freely negotiated and does not reflect the legal rights of both sides will not give Israel the peace and security which it desires and to which it is entitled. As President Obama has recently reiterated, the pre-1967 lines are the basis for all territorial negotiations.

6.5 Admission of the State of Palestine to the UN and the negotiation of a peace treaty between Israel and Palestine will also open the way for recognition of Israel by the member States of the Arab League in accordance with the Arab League Peace Plan – although that will also require Israel to make peace with Syria, for which it needs to renounce its unfounded claim to the Syrian Golan Heights and withdraw from them.

6.6 It will also defuse the vexed struggles over the legitimacy of Israel and the Zionist project which are slowly but surely turning Israel into a pariah State. Indeed, once Israel has made peace with the State of Palestine, other States may be willing for their embassies to Israel to be placed in the Israeli part of Jerusalem.

7. The Benefits for Britain in recognising the Palestinian State

7.1 As the former Mandatory power, Britain has a historic responsibility to the Palestinian People. By taking the lead among EU nations in recognising the Palestinian State and its 6

territorial integrity, Britain will take a major step towards healing a wound and an injustice which has lasted for decades and been a major destabilising factor in the Middle East. Recognition will help reduce tensions in the region.

7.2 Recognition will give Britain much needed credibility in the fight against extremism, ultimately making our streets a safer place and reducing the threat to British citizens, to British troops in Afghanistan, and British interests overseas generally.

7.3 At the time of the “Arab Awakening”, it will also enable us look the Arab World in the eye and show that we do desire a relationship of equality and mutual respect. By demonstrating our commitment to the rule of international law, it will encourage Arab countries to do the same.

Further reading:

The Israel-Palestine conflict in international law: territorial issues by Iain Scobbie with Sarah Hibbin and an introduction by Henry Siegman, U.S. Middle East Project and the Sir Joseph Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London. (http://www.soas.ac.uk/lawpeacemideast/publications/file60534.pdf)

John McHugo is Chair of LDFP and Board Member of CAABU. For more information please contact info@ldfp.eu.

share using:

• 15^th May marks Nakba Day for Palestinians. Following the uprisings elsewhere in the Middle East and a well-organised internal campaign, thousands of Palestinians and their supporters were embroiled in deadly confrontations with the Israeli army as protests erupting across the Palestinian territories, Israel and its borders with Syria, Lebanon and Jordan were met with live fire, rubber bullets, stun grenades and teargas.
• At least 13 people were reported killed in a day of bloody confrontations, including 10 at the Lebanese border, at least two at the Syrian border and one in Gaza.
• Benjamin Netanyahu, the Israeli prime minister remained defiant, insisting that he would respond to cross-border challenges, whether mounted by soldiers or civilians, in a robust manner. “Nobody should be mistaken,” he said. “We are determined to defend our borders and sovereignty.”
• In a West Bank refugee camp and on the outskirts of Jerusalem, soldiers fired tear gas to break up large crowds of stone throwers. But there were no signs of the mass unrest Israel had prepared for by deploying thousands of troops and sealing the West Bank.
• Video footage here (Ramallah) and here (Golan).

share using:

Call for Sanctions & Boycott on Israel

Lib Dem Friends of Palestine, a voice for human rights in Palestine, have joined the growing call to the British public and companies to boycott Israeli goods on sale in Britain.

We are deeply concerned at the continuing failure of UK and USA governments to take any measures against Israel. LDFP call on the coalition government and EU to implement economic sanctions against Israel.

Chair of LDFP, John McHugo said,

“We also call for a cultural boycott of Israeli performers and artists, unless such performers and artists have stated clearly and publicly that they oppose Israel’s immoral breaches of international law and have called for an end to the occupation.”

“We call for a boycott of companies complicit in the occupation, for dis-investment from such companies, and for specifically targeted sanctions by the UN to compel Israel to comply with its moral and legal obligations.”

“During the last 42 years, Israel has transferred part of its civilian population into the occupied territories thereby setting up a form of Apartheid.”

“Throughout its existence, Israel’s armed forces have carried out war crimes with impunity, often with the open encouragement of its political leaders. Israel has encouraged a culture of denial about this in the international community.”

“The present situation is a great injustice, in which Western nations (including the UK) have colluded. It is also against the self-interest of the international community for it to continue. We in the Liberal Democrat Friends of Palestine join the call for a boycott and sanctions against Israel.”

Ends

Chair: John McHugo; Mobile: 07736 882641; E-mail: john.mchugo@btinternet.com

Press Officer: Nasser Butt, Mobile 07710 389336; Email: nassermbutt@onetel.com

—

Notes:

A Full Statement by John McHugo, Chair of Liberal Democrat Friends of Palestine

Ethical Principles for boycotting Israel

“I’ve been very deeply distressed in my visit to the Holy Land; it reminded me so much of what happened to us black people in South Africa. I have seen the humiliation of Palestinians at checkpoints and roadblocks, suffering like us when young white police officers prevented us from moving about.”

– Archbishop Desmond Tutu

Why we are calling for a boycott

Israel’s occupation of East Jerusalem, the West Bank, the Gaza Strip (still Israeli-occupied territory in international law despite Israel’s withdrawal in 2005) and the Syrian Golan Heights has now endured for over 42 years. During this period, Israel has transferred part of its civilian population into the occupied territories thereby setting up a form of Apartheid. It has purported to annex parts of these territories, claimed the right to annex other parts, and refused to admit that it is bound by the corpus of international humanitarian law in its behaviour as an occupying power. Official Israeli maps frequently show all or parts of the occupied territories as belonging to Israel, and encourage Israeli citizens and the international community to think accordingly.

Israel has also failed to acknowledge any moral or legal responsibility towards those Palestinians whom it and the Yishuv displaced in the fighting in Palestine which took place between the UN Partition Resolution in November 1947 and the 1949 cease-fires between Israel and the neighbouring Arab states, or at later dates

Throughout its existence, Israel’s armed forces have carried out many war crimes with impunity, often with the open encouragement of its political leaders. Israel has encouraged a culture of denial about this in the international community.

Israel has thus wilfully failed to abide by its international obligations and obstructed peace moves. At the same time, it has striven on many occasions to avoid legal scrutiny of its actions, and has conducted a well-financed propaganda campaign to persuade the world that its breaches of international law can be justified (or that they are not breaches at all), and to deny legitimate Palestinian claims.

By contrast, since at least the launch of the Arab League Peace Initiative in 2002, the Arab states have indicated publicly that they are prepared to recognise an Israel which lives in peace and security with its neighbours within its pre-1967 frontiers.

Our call for a boycott

The present situation is a great injustice, in which Western nations (including the UK) have colluded. It is also against the self-interest of the international community for it to continue. We in the Liberal Democrat Friends of Palestine join the call for a boycott and sanctions against Israel, and will fight for this to become official party policy until such time as Israel accepts its legal obligations towards the Palestinian People and Syria and implements them.

Our call for a boycott and sanctions is limited to this precise objective and will cease forthwith once this objective has been met. In campaigning for a boycott and sanctions, we are mindful of many appeals that have been made to the international community, not least the call by the Palestinian churches in their “Kairos Palestine” document entitled “A Word of Faith, Hope and Love from the Heart of Palestinian Suffering”:

“Our word to the international community is to stop the principle of ‘double standards’ and insist on the international resolutions regarding the Palestinian problem with regard to all parties. Selective application of international law threatens to leave us vulnerable to the law of the jungle. It legitimises the claims by certain armed groups and states that the international community only understands the logic of force. Therefore, we call for a response to what the civil and religious institutions have proposed, as mentioned earlier: the beginning of a system of economic sanctions and boycott against Israel. We repeat once again that this is not revenge but rather a serious action in order to reach a just and definitive peace that will put an end to Israeli occupation of Palestinian and other Arab territories and will guarantee security and peace for all.”(paragraph 7).

What form should the boycott and sanctions take?

Boycotts can be crude and ineffective, punish the innocent, and hinder dialogue. These are all risks. At the same time, there are particular issues with regard to boycotting Israel, given the history of anti-Semitism in Europe and America. We therefore do not make the call for boycott and sanctions lightly.

Yet we are convinced that a boycott and sanctions are necessary because of the culture of impunity which Israel enjoys in its dealing with Western governments and in the minds of large sections of Western opinion. Unless an effective form of pressure can be brought to bear on Israel, it will have no incentive to recognise Palestinian and Syrian rights and make peace with its neighbours. Its actions have amply demonstrated this. In addition, Israel sets out to frustrate attempts by the international community to treat goods wholly or partially produced in its illegal settlements – or by settlement labour -differently from goods produced in Israel.

We call on the public to boycott Israeli goods on sale in this country and to carry out a cultural boycott of Israeli performers and artists, unless such performers and artists have stated clearly and publicly that they oppose Israel’s breaches of international law and have called for an end to the occupation. We likewise call on British performers and artists to refuse to perform in Israel.

We also call for a boycott of companies complicit in the occupation, for dis-investment from such companies, and for specifically targeted sanctions by the UN to compel Israel to comply with its obligations. We will fight to make such sanctions official British government policy.

We believe that these forms of boycott and sanctions will not prejudice dialogue but encourage it, since they will draw the attention of Israelis to the consequence which their government’s actions have on the Palestinian and Syrian peoples.

—

John McHugo

Liberal Democrat Friends of Palestine

10 December 2010

share using:

Water is the Palestinians’ most precious resource.  Control of the water supply, land confiscation and house demolitions, as well as the violence of the Israeli Defence Force (IDF) and of the settlers, make it clear that Israeli policy is to coerce the Palestinians to vacate the land and to delegitimise their existence. Palestinians cannot trust the Israeli authorities or judiciary to grant them redress.

• Israel has taken sole control of the Mountain Aquifer, the West Bank’s principal water supply and is taking around 80 per cent of it to supply  the illegal settlements and Israel itself.

• The IDF prohibits Palestinians from harvesting rainwater by destroying their cisterns.

• Palestinians are forbidden from drilling new wells or rehabilitating old wells without permits from the Israeli authorities. Such permits are difficult and often impossible to obtain. Even pipelines connecting wells to Palestinian towns and villages require Israeli permits.

• The IDF controls access to the roads which water tankers must use to deliver water to those Palestinian villages not connected to the water network. Many roads are closed or restricted to Palestinian traffic, causing delays or forcing the tankers to make long detours, which significantly increase the price of water.

• Palestinian families have to buy their water from the Israeli water company Mekorot which makes Palestinians pay a price 4 times higher than that charged to Israeli settlers in the occupied West Bank.

“There is no reason for Palestinians to claim that just because they sit on lands, they have the rights to that water.”

– Mr. Katz-Oz, Israel’s negotiator on water issues

• When supplies of water are low in the summer months, the Israeli water company Mekorot closes the valves which supply Palestinian towns and villages so as not to affect Israeli supplies. This often means that Israeli settlers have their swimming pools topped up and lawns watered, while Palestinians living next to them, on whose land the illegal settlements are built, do not have enough water for drinking, washing and cooking.

• The average Israeli settler now uses around 400 litres of water a day, twenty times more than many of their Palestinian neighbours have to survive on.

• The Military Orders issued by the IDF soon after it first occupied the area, which gave control of Palestinian water resources to Israel, remain in force today.  (Military Orders 92 and 168 of June and November 1967, and Military Order 291 of December 1968)

• In Madama village 50km north of Jerusalem, settlers from the Yizhar colony have repeatedly vandalized the villagers’ only source of water. They have poured concrete into it, vandalized the connecting pipes and even dropped disposable diapers and other hazardous waste into the springs. The settlers routinely attack villagers trying to repair the water source.

• 90 per cent of tap water in Gaza is unfit for human consumption because it is contaminated by sea water and sewage.

• Under international law it is illegal for Israel either to expropriate the water of the Occupied Palestinian Territories for use by its own citizens or to expropriate it for use by illegal Israeli settlers.

—

Originally published for Liberal Democrat Conference 2010

share using:

• The settlements are illegal under international law. The Fourth Geneva Convention (Article 49) specifically prohibits  the occupying power from transferring its citizens to occupied territory.

• The illegal status of settlements has been confirmed by the UN Security Council and the International Court of Justice (ICJ).

• Settlements are Jewish colonies built on land seized during the 6-Day War in 1967. The largest, such as Betar Illit and Ma’ale Adumim, have over 33,000 residents.  Due to the extensive network of settler roads which Palestinians are forbidden to use and restrictions on Palestinians accessing their own land, Israeli settlements effectively fence off more than 40 per cent of the West Bank.

• Many of the settlers are far-right religious Zionists who believe they are “redeeming the land”. Their aggression towards Palestinians includes setting fire to cars, destroying crops and uprooting olive trees. These actions are often intended to harrass Palestinians into leaving their homes and farms.

• Such attacks against Palestinians and their property are frequently assisted and protected by the Israeli military and can be carried out with complete legal immunity.

• Palestinians, subject to military law, are denied the legal rights given to settlers, who are subject to Israeli criminal law. This apartheid system of law is itself illegal.

• In the Old City of Hebron settler violence is notorious.  Settlers, guarded by the Israeli army and civilian police, routinely attack the Palestinian inhabitants of Old Hebron and vandalize their property. Former Israeli Prime Minister Ehud Olmert has characterized some of these attacks as ‘pogroms’.

• Approximately half of all Palestinian injuries from settler violence each year since 2006 have been made up of children, women and the elderly over 70 years of age. (Office for the Co-ordination of Humanitarian Affairs  – OCHA)

• Settlements divide the West Bank into cantons, so that the Palestinians are increasingly forced to live in isolated enclaves. These ‘facts on the ground’ are designed to destroy any chance of a viable and contiguous Palestinian state.

• Demolition of Palestinian family homes accompanies illegal settlement building in occupied East Jerusalem. At least 230 Palestinian structures have been demolished in East Jerusalem and Area C [where Israel has full administrative control] since the beginning of this year, displacing 1100 Palestinians, including 400 children. (OCHA)

• This Judaization of East Jerusalem is for the stated purpose of expanding the Jewish character of the city and guaranteeing its indivisibility.

• There are currently 479,600 settlers living illegally in the West Bank and East Jerusalem (Peace Now – June 2009)

—

Originally published for Liberal Democrat Conference 2010

share using:

UJ is the legal power which allows suspected perpetrators of crimes such as war crimes, torture and genocide to be prosecuted in the national courts of countries other than those where the alleged crimes were committed. As a signatory to the four 1949 Geneva Conventions and the 1984 UN Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment  (UNCAT), Britain has not only the capacity, but also the duty, to arrest and prosecute those suspected of such crimes.

Article 146 of the Fourth Geneva Convention, states that the UK is:

….under an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

It is often difficult, if not impossible, to bring a suspect to justice in the state where the crimes allegedly took place. The purpose of UJ is to ensure that there is no hiding place for suspected war criminals.

Arrest Warrants for war crimes and crimes against humanity

The current position is that a private individual may apply to a magistrate for an arrest warrant if the war crimes suspect is visiting the country or a visit is anticipated. The Attorney General’s consent is needed for the prosecution to go ahead. But under Section 25 of the Prosecution of Offences Act 1985, absence of consent does not prevent the issue of a warrant, if the magistrate considers that:

1. there are reasonable grounds to suspect that an offence under such legislation has been committed;
2. admissible evidence has been presented which (if uncontradicted) establishes the elements of the offence alleged;
3. s/he has jurisdiction to issue the warrant and has ruled out the immunity of the suspect.

The policy of the previous Government was based on a fundamental misconception

Before the election, the Government wished to remove the power of the magistrate to issue arrest warrants in universal jurisdiction cases. In coming to this view, it seems to have allowed itself to be convinced that the making of applications for warrants had become a form of political protest and a misuse of the courts. As the Labour MP Andrew Dismore, who lost his seat in the election, put it in a parliamentary debate in January:

“I would like to see our courts protected from being used as campaign forums by politically motivated groups that are not interested in justice, but are interested in scoring party political or other political points in this long running conflict in the Middle East…Our courts have been left dangerously open to political manipulation and are being brought into disrepute.”

This view was echoed by Gordon Brown. In March, he wrote in The Daily Telegraph that

an arrest warrant for the gravest of crimes can be issued on the slightest of evidence…As we have seen, there is now significant danger of such a provision being exploited by politically motivated organisations or individuals who set out only to grab headlines knowing their case has no realistic chance of a successful prosecution. Britain cannot afford to have its standing in the world compromised for the sake of tolerating such gestures.

But these assertions, like the other statements made by those arguing for a change in the law, are based on a fundamental misconception. There has not been one successful attempt to procure the issue of a warrant in a manner that was an abuse of process. Significantly, none was cited by the last Government when it proposed to change the law. Indeed, Gordon Brown’s generalised assertions are an insult to our judicial system and the victims of some of the most heinous crimes.  Proposals by the last Government to change the system attracted criticism from NGOs such as Amnesty International, Human Rights Watch, Liberty, Redress, Global Witness, FIDH (the International Federation for Human Rights), and Justice (the British section of the International Commission of Jurists), as well as practising lawyers.

The risk in changing the Law

The issue of the arrest warrant for a war crime is decided only by specialist legally qualified magistrates such as the most senior district judge at Westminster Magistrates’ Court. They are well qualified to decide whether the high threshold of evidence, liability and jurisdiction has been met and that no immunity applies.  If the issue of the warrant has to wait until a decision whether to prosecute had been taken, whether by the Crown Prosecution Service (the “CPS”) – as was advocated in a paper produced by the Ministry of Justice for the last Government -  or by the Attorney General,  the suspected war criminal will long since have fled the jurisdiction. Suspects should not escape before the police and/or CPS have had the opportunity to make a considered decision whether to investigate the allegations. The removal of the right of public prosecution in such cases would have the effect of turning our country into a safe transit point for war criminals, torturers and those guilty of genocide from all over the world.

Tzipi Livni and other Israeli suspects

In the case of visiting Israeli ministers or military leaders, the UN mandated Goldstone Report which investigated Operation Cast Lead, the assault on Gaza in December/January 2009 – 2010, contains ample prima facie evidence of attacks which deliberately targeted civilians and civilian infrastructure. It thus concluded that war crimes had been committed and that these needed investigation.  Ms Tzipi Livni, as Israeli Foreign Minister, was one of those responsible for authorising these attacks and made public statements that appeared to encourage the Israeli military to use disproportionate force and engage in deliberate destruction with no legitimate military objective. Prima facie evidence of both the factual and mental elements of her committing war crimes would therefore seem to exist, and it is scarcely surprising that a senior magistrate found there to be sufficient evidence for her arrest if she visited the UK.

The argument that banning Israeli ministers from visiting the UK hinders the ‘peace process’ is specious. There is nothing to prevent British ministers from visiting suspects in their own country where they enjoy immunity. Furthermore, the serving prime minister, foreign minister and minister of defence of any sovereign state can visit this country without fear of prosecution under the principle of sovereign immunity.

A regressive and retrograde step

Any attempt to involve the Attorney General in the decision to issue the warrant would be regressive. It would be a retrograde step with regard to the independence of prosecutors. If any revision to the law is contemplated, then it should be to reduce the role of the Attorney General in favour of that of the Director of Public Prosecutions who should become the official who decides on the public interest requirement of whether the prosecution should go ahead, once a warrant has been issued. If desired, the DPP could also be given the right to advance notice of the application and the right to attend the hearing of the application.

The right to bring a private prosecution is an ancient, common law right with which the Executive tampers at its peril. Over the centuries, Parliament has been persuaded of its desirability. This is reinforced by the views of highly respected law lords. As Lord Simon of Glaisdale put it, the right is founded on the “fundamental constitutional principle of individual liberty based on the rule of law”, while Lord Wilberforce noted that the right remains “a valuable constitutional safeguard against inertia or partiality on the part of authority” and Lord Diplock stated that it was “a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of [the] authorities to prosecute offenders against the criminal law”. As recently as 2006, Lord Mance stated that the right is “a safeguard against wrongful refusal or failure by prosecuting authorities to institute proceedings”. Furthermore, private individuals who put together the necessary admissible evidence to secure the issue of an arrest warrant do so at their own expense. At a time of economic austerity, it would be wrong in principle to amend the law in a way that might necessitate additional public expenditure.

John McHugo
Chair,
Liberal Democrat Friends of Palestine
9 June 2010

share using: