(photo credit: Idan Gross )
The recent amendment of Britain’s universal jurisdiction law was,
unsurprisingly, particularly welcomed in Israeli legal and political circles.
The law, allowing in its previous form the issuing of arrest warrants through a
magistrate’s decree in cases of grave breaches of international humanitarian
law, had for the past few years deterred senior members of the Israeli political
and military echelon from traveling to Britain. Under its amendment, the final
decision for the issuing of such warrants falls to the Director of Public
There is no doubt the amendment should be hailed. First
because it was long anticipated as a consistent British commitment to both the
current and previous Israeli governments, and second because it heeds the call
of the times. In the era heralded by the Arab Spring, there is greater awareness
of the role of the people as agents of change, whether via parliamentary
mechanisms or demonstrations.
Only recently, the US Congress openly cast
doubts on the legality of America’s involvement in Libya, Israel’s Knesset
Speaker asked for an advisory opinion on whether governmental permission for the
deployment of Egyptian troops to Sinai violated the Camp David accords, and in
Australia, the parliament emphatically requested that the government discuss its
controversial asylum-seekers policy.
Now more than ever it is evident
that courts serve ex post facto; when all other institutions fail to administer
justice. Thus for example in Australia, the country’s High Court intervened to
annul the refugee swap agreement with Malaysia only after the government did not
heed opposing voices.
This ex post facto judicial function is also
evident in the recent British amendment.
The Director of Public
Prosecutions is meant to intervene only in cases that have passed the filter of
There is no doubt that the status quo ante allowed
for an unjustified politicization of the British judicial system, an occurrence
minimized if not rendered obsolete by the current amendment.
question is if such politicization will not now be transferred to the
international field. While the amendment closes the door for Israeli officials’
indictment in Great Britain, the incumbent declaration of Palestinian statehood
opens the door for their possible indictment by the International Criminal
Court. A Palestinian request to the Court for investigation of possible Israeli
crimes in Gaza has been halted the past few years due to the debate on whether
the Palestinians fulfill the necessary state requirement in order to be able to
accept the Court’s jurisdiction. A successful UN statehood bid would erase this
The British government’s conduct in the international bodies
where Israeli citizens’ International Criminal Court referral is going to be
raised, will demonstrate whether the amendment stems from a firm conviction that
Israeli officers are not war criminals, or merely constitutes a cynical attempt
to shed responsibility for such indictments.
The latter is not at all
improbable. Only recently, Turkey declared it would turn to an unspecified
international court to dispute a UN panel’s findings on the legality of Israel’s
Gaza closure. Ultimately, it seemed it did not matter, the important thing being
just recourse to an international judicial body.
cannot serve as the scapegoat of domestic judicial systems or of politically
motivated motions. Of course the law had to be amended, but the British
government has to follow up the initiative in the international sphere. What is
needed is not a solitary initiative or voice, but a coherent policy line. By
forming such a policy the United Kingdom will bolster its regional and
international stance and thus international justice will preserve its profile,
proving that after all, not all is either justiciable or justifiable.The
author has served in the past in the Knesset Legal Department in charge of
international and constitutional issues, and is the author of
of International Disputes: The Advisory Opinion on Israel’s Security Fence as a