Counterpoint to:
“Under UK law, people accused of certain crimes including some war crimes may be prosecuted in British courts even if they are not British and the alleged crimes did not take place in Britain.”
Oliver MilesThe Guardian (London)November 22, 2010
Former British ambassador to Libya, Oliver Miles, would apparently like to see Tony Blair and George Bush in the dock at Westminster - the absurdity of which may offer only limited comfort to Israeli leaders. Israel’s senior officials are currently boycotting Britain because for them the proposition may not be that absurd.
Miles, a passionate opponent of the Iraq and Afghanistan wars, can fantasize about Bush and Blair because a group of pro-Palestinian activists have been trying to get an Israeli leader arrested for war crimes the minute he or she sets foot in Britain. The scheme stems from the principle of universal jurisdiction, which in some cases permits any civilian to petition the British courts to prosecute people, even if they are not British and their alleged crimes did not take place in Britain.
What are the implications of the unqualified application of this principle?
In late 1999, the Russian army commenced a vicious military campaign against Chechen separatists. In one incident, on February 5, 2000, Russian forces used brutal force, killing sixty Chechen civilians during operations in the town of Aldy.
Igor Sergeyevich Ivanov is the former Foreign Minister of Russia, a professor at Moscow’s Institute of International Relations and a close friend of Russian Prime Minister Vladimir Putin. What would happen if Ivanov visited Britain and, on arrival, having been foreign minister during the Chechnya campaign, was arrested for complicity in alleged war crimes?
This question, of course, is entirely hypothetical because there is no likelihood of a Russian leader being arrested by the British authorities, just as there is no likelihood of an American, Chinese or even Iranian leader being apprehended in Britain for alleged war crimes or human rights offenses. That is because the British understand very well that the consequences of such action would be dire.
Countries such as Belgium and Spain have realized that the principle of universal jurisdiction is a double-edged sword. While affording the countries a lush feeling of moral superiority, the principle can in reality only be used safely against officials of small weak countries. Thus in 2001, four Rwandan citizens were convicted in Belgian courts under the principle. But attempts by activists to have American and Israeli leaders indicted in Belgium led to a US warning that NATO headquarters would be pulled out of Brussels if the law was not changed.
As a result, in June 2003 Belgian law was changed to require both the plaintiff and the accused to be residents of Belgium.
In Britain both the previous Labor government and the current Conservative government reached a similar realization, and each announced the intention to impose restrictions on the application of the principle, but they apparently found it difficult to do, due in part, to the lobbying of pro-Palestinian advocacy groups. The groups were reluctant to give up such a potent weapon in their campaign of lawfare against Israel.
When Tzipi Livni cancelled a trip to Britain in 2009 following the issuance of an arrest warrant petitioned by pro-Palestinian advocates, former prime minister Gordon Brown wrote to Livni saying that he was "completely opposed" to the warrant issued by a British court for her arrest for war crimes and pledged to work to change the law that allowed it.
Then again this year Israel cancelled a visit to Britain by Deputy Prime Minister Dan Meridor as well as a high-level meeting with the British government known as the “Strategic Dialogue”. According to the Financial Times, British diplomats later played down the rift, insisting that the next Strategic Dialogue meeting had been delayed rather than abandoned. The venue of the meeting was subsequently moved to Israel.
During a recent visit to Israel, British Foreign Secretary William Hague stated on Israel’s Channel 10 TV that his government was acting to correct universal jurisdiction and added that he had been critical of the outgoing Labor government for not doing so. He promised that the law would be changed within the next year, but asked Israel not to pressure his government to move faster than the parliamentary process would allow.
There are several other countries that have adopted the principle of universal jurisdiction, one of which is Israel.
Israel is considered to have set an important modern precedent in the advancement of universal jurisdiction when in 1960 it arrested the Nazi war criminal Adolf Eichmann in Argentina and brought him to trial in Israel. Of course the Holocaust and the pursuit of its perpetrators was a unique occurrence in modern history, and Israel has restricted its application of the principle to that event alone.
Of the many problems with universal jurisdiction, perhaps the most legally problematic is its abuse by interest groups in the furtherance of their political agendas. Any political group in Britain needs only to find a like-minded low-level judge willing to issue an arrest warrant. The likelihood that the warrant will be quickly revoked is irrelevant. The harassment of the visiting official and the embarrassment that ensues are in themselves regarded as a political triumph.
Another problem with the application of the principle is, of course, the possibility that the visiting official’s country will retaliate, leading to a sequence of events that could mushroom out of control. No government wants to find itself dragged into an international confrontation not of its choosing, sparked by a group with its own political axe to grind.
Oliver Miles, being a seasoned diplomat, clearly understands much of this. Yet he sees the prevention of “interest groups” from “misusing” the law (the quotes are his) as “problematic” (the quotes are mine). He brings two examples both of which actually do more to highlight the need to curb interest groups than to justify his concerns about limiting Britain’s universal jurisdiction.
“In January 2009, during the Gaza war, activists broke into a factory in Hove and smashed up machinery which they believed was being used to manufacture bombing equipment for export to Israel against the law. They did not deny their actions, but used the defence of ‘lawful excuse’, committing an offence to prevent a more serious crime. They were acquitted by a jury, and the judge is reported to have commended them for their action.In a similar affair on two separate occasions in 2006 activists who broke into and damaged a plant in Derry alleged to be supplying missile software to Israel were acquitted.”
Miles states that in both cases repeat action seems likely and he is quite right, due in no small way to the encouragement of the two British courts. Would these same courts condone the smashing of equipment bound for allied forces in Iraq and Afghanistan by opponents of the wars, or the destruction of Russian, Chinese or American interests in Britain?
And what would happen if a group of Israel supporters broke into a Palestinian charity in London and smashed the computers, equipment, and furniture, saying that they believed the donations were being used to fund Palestinian terror attacks on Israeli civilians. Would a British judge accept a defense of “lawful excuse” and commend them for their action?
There are many vociferous activists in Britain today, both within and without parliament, opposing immigration, globalization, America, Israel, and Britain’s former prime minister Blair, to name but a few of the more popular causes. The country, like others in Western Europe, is going through an identity crisis, and within its shifting sands it is sometimes difficult to determine where the real Britain lies. It will therefore be interesting to see if the British government is able to fulfill its commitment to change the law.
Britain has a democratically elected government, which is entrusted with establishing foreign policy. So when Foreign Secretary Hague says that his government will change the laws related to universal jurisdiction it is his voice that should prevail above the clamor. Let us hope that that turns out to be the case.